December 1997 Vol. 9, No. 4 (B)
PERU
TORTURE AND POLITICAL PERSECUTION IN PERU
December 1997 Vol. 9, No. 4 (B)
PERU
TORTURE AND POLITICAL PERSECUTION IN PERU
In the past few years, the human rights panorama in Peru has brightened considerably because of the decline in the massive "disappearances" and extrajudicial executions that has accompanied reduced political violence. Despite this positive trend, however, serious human rights violations continue, chief among them the use of torture. With the success of the Alberto Fujimori administration in substantially crippling the armed opposition groups' military capacity, counterinsurgency efforts are now conducted principally through a system of special anti-terrorism courts and military tribunals, backed by a ubiquitous intelligence apparatus. Institutionalized torture plays a key role in this system. Torture is also routine in the interrogation of suspects in cases of common crime. The army has even used torture against its own members who came under suspicion of endangering national security.
Although President Fujimori says that he does not condone torture, his administration has made no effort to curtail it. To the contrary, it has facilitated torture by weakening constitutional guarantees in wide areas of the country and by undermining the autonomy and effectiveness of government bodies established to protect constitutional rights. It has also failed to enact legislation that would designate torture as a distinct offense within the penal code carrying a commensurate level of punishment. It has attacked and intimidated the press for carrying stories critical of its human rights record.
The security forces continue to confront two armed opposition groups, the Communist Party of Peru-Shining Path (Partido Comunista del Perú-Sendero Luminoso, PCP-SL), known as the Shining Path, and the Túpac Amaru Revolutionary Movement (Movimiento Revolucionario Túpac Amaru, MRTA), both of which consistently breach basic principles of international humanitarian law. The Shining Path commits selective assassinations of its civilian opponents and carries out indiscriminate attacks, killing and maiming civilians. The MRTA, on a lesser scale, has also resorted to executions and indiscriminate attacks, and has kidnaped civilians and taken them hostage for lucrative ransoms or to force the government into releasing imprisoned cadres. Both organizations have resorted to torture, usually as a prelude to execution.
The legal regime imposed to combat political violence facilitates torture.
Detainees suspected of what Peruvian law defines as terrorist offenses
may be held for up to fifteen days by the police before they are charged
or released. Such detainees are usually handled by Peru's anti-terrorist
police, the National Directorate Against Terrorism (Dirección Nacional
Contra el Terrorismo, DINCOTE). DINCOTE may hold suspects incommunicado
for up to ten days without a court order. Torture typically occurs on police
premises while suspects are being held incommunicado and interrogated.
It is used to extract signed declarations incriminating the victim and
to obtain information. Reforms introduced in 1996 to safeguard detainees'
rights while under interrogation, such as allowing them access to defense
lawyers and requiring the presence of a public prosecutor when statements
are taken, have not eliminated torture. Many detainees are tortured by
military personnel before being handed over to the police. Public prosecutors
also fail to supervise or monitor detention to protect the physical security
of detainees. These abuses take place most frequently in "emergency zones,"
areas in which the police and army enjoy special powers under the emergency
regulations to combat Shining Path or the MRTA. For instance, they can
detain suspects and conduct searches without a warrant.
According to a study of cases by the Institute for Legal Defense (Instituto
de Defensa Legal, IDL), one of the most important Peruvian non-governmental
human rights groups, more than three out of four people accused of "terrorism"
reported that they were tortured after arrest. When instances of torture
come to light periodically, the government calls them isolated cases and
assures the public that they will be investigated and punished. The record
shows, however, that such pronouncements are usually hollow: torture cases
are rarely punished. Although the compilation of comprehensive statistics
is difficult, Peruvian human rights groups estimate that at least 95 percent
of the torture cases they document go unpunished. Those responsible are
only held accountable in special circumstances, such as when a case causes
a public outcry, receives close press attention, or comes under the spotlight
of international publicity.
The role of torture in the government's counterinsurgency strategies
was demonstrated during the occupation of the residence of the Japanese
ambassador by the MRTA, which began on December 17, 1996. In March 1997,
before army commandos broke into the building and released seventy-one
hostages held by the guerrillas, the Peruvian army detained more than forty
coffee growers in Alto Yurinaki, where they believed the MRTA guerrilla
column responsible for the attack had originated. Over the next few days,
the army reportedly tortured almost all of the detainees in an attempt
to force them to incriminate themselves and their neighbors as members
of the MRTA. The army variously beat them, submerged them in tanks of water,
made them stand without food in the sun for hours, and shocked them with
electricity. DINCOTE later ordered the release of all but one of the detainees
for lack of evidence. Human Rights Watch/Americas, together with representatives
of Peruvian human rights organizations, conducted investigations in the
area of the arrests, interviewing released detainees or members of their
families. The testimonies of former detainees, their relatives, village
leaders, and provincial government authorities confirmed the systematic
use of torture during this operation, and the failure of the legal regime
in force to protect the physical integrity of the victims or to punish
those responsible.
In early April the country was stunned by reports based on a television
investigation that army intelligence officials had brutally tortured one
of their own agents in the basement of army headquarters in Lima. Film
shot secretly in the military hospital showed the fingers and ankles of
the agent, Leonor La Rosa, inflamed and scarred from burns reportedly inflicted
with a blowtorch. La Rosa had been under investigation after secret intelligence
plans to intimidate journalists and members of the opposition were leaked
to the press. The body of another agent, a colleague of La Rosa's, was
discovered on a roadside north of Lima with its head and hands missing,
after they had been severed apparently to avoid her identification.
If Peru is to bring its counterinsurgency policy and crime fighting
tactics into line with international human rights standards, it must introduce
effective measures to combat torture and impunity. Although Peru is a signatory
to international treaties against torture, neither its laws nor its practice
meet the standards required by international law. For example, torture
is still not classified as a specific crime in Peru. Cases of torture must
currently be prosecuted as "battery," and the low penalties provided upon
conviction are inappropriate given the gravity of the crime. More importantly,
the government fails to ensure that complaints of torture are investigated
adequately and those guilty held accountable.
The persistence of torture in Peru is attributable, in part, to the
weakness and lack of independence of entities responsible for ensuring
respect for the law and human rights. Despite repeated promises, President
Fujimori has failed to restore fully the independence of the judiciary,
shattered following the coup d'etat in 1992. Civilian judges still occupy
provisional posts in many parts of the country, subject to removal by a
committee dominated by a government appointee. Fearful for their jobs,
many judges are unwilling to challenge police misconduct and accept as
evidence confessions extracted under torture, a practice that is explicitly
banned under international law. Such confessions are also readily accepted
by the special "faceless" courts and military tribunals that try persons
accused of subversion and treason: the laws that govern these courts impose
additional obstacles to judicial detection of torture by preventing members
of the police who conducted interrogations from appearing for cross-examination.
Torture is committed with impunity. Few members of the military or police
are prosecuted for abusing detainees unless the victim dies from the torture.
Moreover, they are rarely prosecuted by impartial and autonomous courts.
Instead, military courts assert jurisdiction in torture cases in which
the accused are members of the armed forces. Convictions in military courts
are rare, and when agents are convicted they are given sentences disproportionately
light given the seriousness of the crime. Military courts also obstruct
and refuse to cooperate with investigations and prosecutions of torture
cases by civilian authorities.
Grave shortcomings in the effectiveness and independence of official
monitoring bodies limit their ability to combat torture. In recent months,
the ruling party, Change 90-New Majority (Cambio 90- Nueva Mayoría,
C90-NM), which has a substantial majority in congress, has striven to maintain
control over institutions like the Public Ministry, which works within
the Office of the Attorney General of the Nation to prosecute crimes, and
the Constitutional Court, which monitors observance of the constitution.
The office of the Attorney General, which is responsible for overseeing
the independence of the courts and ensuring the correct administration
of justice, has had key powers removed and transferred to a single official,
a government appointee, who is known to be a close ally of the president.
In April 1997, the attorney general came under personal attack by the armed
forces for seeking to enforce habeas corpus rulings affecting military
justice officials. In June 1997, three judges of the seven-member Constitutional
Court were dismissed after an impeachment spearheaded by C90-NM, which
assailed the judges for ruling that Fujimori's planned run for a second
re-election was unconstitutional. The court was left barely functioning,
and could not continue to act effectively as a forum for the protection
of constitutional rights.
The news media, which in early 1997 played a vital role in spotlighting
human rights abuses, including torture, suffered a welter of government
reprisals in the months that followed. Journalists who had covered torture
cases were victims of physical threats and intimidation and selective prosecution
for alleged tax debts. Channel 2 television, known as Frecuencia Latina,
which broadcast the sensational report on the torture of La Rosa, came
under persistent attack for its critical reporting. The government attempted
to intimidate the channel by subjecting it to an investigation for alleged
evasion of tax or customs duty, a tactic also used against a radio station,
a private clinic which had agreed to admit La Rosa, and one of the impeached
Constitutional Court judges. Baruch Ivcher Bronstein, Frecuencia Latina's
majority shareholder, a naturalized Israeli, was publicly denounced by
the armed forces and later deprived of his Peruvian nationality on specious
legal grounds in a crude attempt to silence the station. Finally, a court
ordered that Ivcher relinquish control of Frecuencia Latina to its minority
owners, provoking a walk-out by respected journalists.
President Fujimori used his inaugural address at the annual General
Assembly of the Organization of American States to launch barbed criticism
of the press and attacked a daily opposition newspaper in television spots
paid for by the Ministry of the Interior. These actions by government officials
helped to create at atmosphere in which physical attacks against journalists
appeared justified.
The Defender of the People (Defensor del Pueblo), an ombudsman appointed
by congress to protect and promote human rights, has managed to preserve
his independence and has acted energetically in individual cases involving
torture. Jorge Santistevan de Noriega, who heads the office of the Defender
of the People, told Human Rights Watch/Americas of the commitment of his
office to work toward major reforms that will benefit the treatment of
detainees. Human Rights Watch/Americas welcomes this commitment and hopes
that it will be backed by the full cooperation of the Peruvian government.
So far, while declaring its opposition to torture, the government has
failed to take measures to stop it, although the extent of the practice
has been amply documented by the international bodies that monitor compliance
with the human rights treaties that Peru has signed. The Alto Yurinaki
cases, documented in this report's fifth chapter and widely covered in
the press, led to an assurance by Fujimori that allegations of torture
would be investigated. Despite their gravity and credibility, no investigation
was carried out. Although four officers allegedly responsible for the torture
of Leonor La Rosa were tried and convicted by a military court, the victim
was held incommunicado, harassed, and threatened. Politically motivated
assaults on the independence and effectiveness of institutions such as
the civilian judiciary and the attorney general's office have weakened
their ability to serve as a bulwark against abuses by the police and the
armed forces. In short, the government has treated human rights as an inconvenient
encumbrance in the way of government policy; instead it must treat them
as a central political objective.
Recommendations to the Peruvian Government:
The government should institute an immediate and impartial investigation
into the use of torture in Alto Yurinaki in March. Military personnel responsible
for torture and those responsible for the operation during which it occurred
should be disciplined and prosecuted. The results of the inquiry should
be made public, and compensation and an official apology should be provided
to the victims.
The crime of torture should be individually and specifically included
in the Penal Code with penalties appropriate to its seriousness.
The People's Defender should make recommendations to the government
aimed at clarifying the legal limits of the jurisdiction of military courts.
Military jurisdiction should be limited to military offenses, that is those
that affect solely military values, such as desertion and disobedience.
Crimes such as torture, even when committed by military personnel against
military personnel, or on military premises, should be dealt with exclusively
by civilian courts.
Although the armed forces lack authority to conduct interrogations of
civilian suspects, they regularly do so. This should be clearly prohibited,
and those who breach the prohibition should be sanctioned.
The Office of the Attorney General of the Nation should take measures
to improve the vigilance of provincial prosecutors in preventing the occurrence
of torture, and prosecutors who fail to attend interrogations and searches
should be disciplined and sanctioned.
The powers of faceless courts and military tribunals to try terrorism
cases should be terminated and transferred to ordinary criminal courts.
While courts should be guaranteed the necessary powers to try terrorist
suspects effectively, such trials should always be conducted with full
respect for the right of defense and the presumption of innocence.
Current periods of incommunicado detention should be drastically reduced,
and suspects should be placed under incommunicado detention only on the
express instructions of the investigating judge. Judges must strictly supervise
incommunicado detention to prevent illtreatment and should impose incommunicado
detention only when strictly necessary to protect the investigation.
The government should investigate thoroughly and impartially the abductions
and violent attacks on members of the press, politicians, and other public
personalities documented in this report. Those responsible for these crimes
should be prosecuted and punished.
A permanent parliamentary mechanism, such as a multi-party commission,
should be established for an effective and impartial review of the activities
of the intelligence services, to ensure that their work is conducted with
full respect for political and civil rights.
The government should immediately restore unimpeded access to Peruvian
prisons, detentions centers, and military installations to the International
Committee of the Red Cross (ICRC). ICRC access can be an important impediment
to the torture or ill-treatment of detainees.
Recommendations to the Shining Path and MRTA:
The Shining Path and MRTA should reject categorically all actions that
violate humanitarian law, including summary executions, indiscriminate
attacks, hostage-taking, and torture.
Recommendations to the United States:
The Clinton administration should suspend all assistance to Peru's National
Intelligence Service, which has reliably been reported to be involved in
numerous human rights violations, including a campaign of harassment of
the press and illegal phone-tapping. The United States should publicly
distance itself from the SIN's de facto chief, Vladimiro Montesinos, who
is widely perceived in Lima to enjoy Washington's support.
The administration should seek support from other members of the United
Nations for the assignment of a special rapporteur or an independent expert
to monitor and publicly report on the human rights situation in Peru.
Government forces rely heavily on torture and other human rights abuses
in their efforts to defeat and dismantle the armed opposition groups, Shining
Path and the MRTA. Although substantially weakened and consequently less
active, both groups continue to mount raids, ambushes, bombing attacks,
and political assassinations. Most of these are carried out by Shining
Path in the jungle region of the Alto Huallaga, where the organization
has its stronghold.
On December 17, 1996, MRTA guerrillas entered the residence of the Japanese
ambassador in Lima during an official reception, occupied the building,
and for almost four months held seventy-two hostages, including government
ministers, judges, and foreign diplomats. Protracted negotiations to secure
their release and a peaceful solution of the crisis became deadlocked.
On April 22, army and police commandos stormed the building, released the
surviving hostages, and killed all of the guerrillas.(1)
A notable reduction in the number of extrajudicial executions and "disappearances"
has accompanied the decline in the levels of political violence. In its
1996 annual report, the National Human Rights Coordinator (Coordinadora
Nacional de Derechos Humanos, Coordinadora), an umbrella group that includes
forty-seven nongovernmental human rights groups, documented three cases
of extrajudicial execution and three "disappearances" in 1996, compared
with thirty-eight extrajudicial executions and twenty-five "disappearances"
in 1994.(2) By November, 1997, Peruvian
human rights groups had documented no new cases of extrajudicial executions
or "disappearances" during the year, promising to make 1997 the first year
free of such abuses for more than a decade.
Despite these improvements, however, the torture of detainees remains
pervasive. The Coordinadora has documented a persistent pattern of torture
and ill-treatment of detainees across the entire country. In a report submitted
to the United Nations Committee Against Torture (CAT) in April 1997, it
presented information on thirty-one selected cases, a small proportion
of the cases registered by the organization over the years.(3)
The cases documented occurred in the departments of Huánuco, San
Martín, Ucayali, Cajamarca, Ayacucho, Amazonas, La Libertad, and
Lima. Among the most seriously affected were Huánuco, San Martín,
and Ucayali.
According to data compiled by the IDL, an important Peruvian human rights
organization that has provided legal representation to prisoners unjustly
accused of terrorism, 78.2 percent of these male prisoners -- almost four
out of every five -- reported that they were subjected to torture or ill-treatment
after their detention. The figure for women is only slightly lower: 70.6
percent. Just over half the men who reported being tortured (51.3 percent)
alleged that the abuse took place in detention centers run by DINCOTE,
while 18.8 percent say they were tortured while in a military base. More
than a quarter of the tortured men said they had been beaten, and an additional
16.3 percent said they had been tortured more than once. The second-most-common
type of torture after beatings was water torture, known as the submarino,
which consists of repeated immersion of the head in water sometimes laced
with chemicals such as household detergent. Rape was the second-most-common
form of torture reported by women prisoners (8.5 percent), after beatings.(4)
In 1995, the Center for Studies and Action for Peace (Centro de Estudios
y Acción por la Paz, CEAPAZ) carried out a survey of people between
fifteen and eighteen years old who had been charged with or convicted of
a terrorist offense and who were in a prison or juvenile detention center.
They found that out of a sample of 128 adolescents, eighty-three -- 65
percent -- said they had been ill-treated during pre-trial detention. Sixty
people -- 47 percent -- said they had been tortured.(5)
Torture is reported with the greatest frequency in regions of the country
controlled by the military under state-of-emergency regulations.(6)
In recent years, some military bases in particular have acquired notoriety
as places of systematic torture. Such was the case in 1995 and 1996 with
the Marine bases of Huipoca and Aguaytía, in the province of Pucallpa.
Several cases were reported in 1996 involving soldiers stationed in or
near Tocache, in the department of San Martín.(7)
In 1994, an officer who had worked in several army bases in the Alto
Huallaga region explained to the Coordinadora the most common types of
torture practiced by army intelligence officials there.(8)
He described seven common techniques:
The "grill:" the detainee is made to stretch out on a metal bed frame
to which electric cables have been connected. The victim is tied with a
wire to the frame and doused with water while electric current is applied.
The "submarine:" the detainee is introduced head-first into a tank of
water, with his hands and feet tied.
The "rag:" the detainee is made to lie on his back with his hands and
feet tied. His head is covered with a wet towel and water is poured on
top his head, half-drowning him.
The "stick:" a stick is introduced into the anus, or in the case of
women, the anus and vagina.
The "brawl:" the detainee is tied up and forced to lie on the floor
while being beaten by at least ten soldiers until he loses consciousness.
"Hanging:" the detainee is hung by his forearms or wrists, after towels
have been tied around them to avoid leaving marks.
The "magneto:" electricity is applied to the testicles.
While in recent years most reports of torture have implicated members
of the armed forces in emergency zones, torture by DINCOTE has continued.
DINCOTE, jointly with the Marines detained Fulberto Marceliano Cuadros
Sánchez, Luz Delicia Guadalupe Collantes and Silvia Inés
Quintana Leyva on January 17, 1996 during a raid on a shantytown in Callao,
Lima. Cuadros was accused of being a member of the Shining Path after the
two women were forced under torture with beatings and electricity to incriminate
him. Members of DINCOTE are alleged to have raped Nancy Patruska Del Campo
Cáceres, aged 23, after they detained her on May 7, 1997 and held
her incommunicado.(9)
The Legal Prohibition of Torture
Military personnel and the police face few internal or external constraints
to the use of torture in interrogating suspects: torture is not codified
as a distinct offense; emergency powers facilitate its use; military court
jurisdiction over members of the military or police encourages impunity;
monitoring institutions have been weakened and compromised.
As a party to the United Nations Convention against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment (the Convention against
Torture), Peru is obligated to "ensure that all acts of torture are offences
under its criminal law"(10) and to "make
these offences punishable by appropriate penalties which take into account
their grave nature."(11) Peru has failed
to do so. Peru's Constitution of 1993 prohibits torture,(12)
but torture is not codified as a specific offence within the penal code.
Under Peru's criminal law, acts of torture can only be prosecuted as violations
of more generic crimes such as "battery"(13)
or "abuses of authority".(14) Neither reflects
the nature or gravity of torture, nor were the relevant laws written to
provide commensurate punishment for cases of torture.
International authorities have repeatedly urged Peru to adopt specific
legislation criminalizing acts of torture. In February 1994, the government
submitted its first report to the CAT established under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment to monitor states' compliance.(15)
Following the hearing in Geneva on Peru's report, the CAT expressed profound
concern about the extent of torture in Peru and the impunity enjoyed by
the perpetrators. It recommended in 1995, ". . . consideration should be
given to defining torture as an independent offence punishable by a penalty
appropriate to its seriousness."(16) The
United Nations Rapporteur on Torture, Nigel S. Rodley, noted in his report
on Peru in January 1996 that "the new Penal Code, in force since 1991,
has not explicitly incorporated the offence of torture as such. The new
criminal legislation even repealed provisions punishing unlawful harassment
and coercion."(17)
Peruvian legislators have long been aware of the need for legislation
on torture. In April 1996, public concern provoked by the death in custody
of Mario Palomino García (see section VI of this report) led to
the presentation to Congress of several bills to outlaw torture. A bill
proposed by congressman Antero Flores Aráoz of the Popular Christian
Party, (Partido Popular Cristiano, PPC) on April 11, 1996, set the penalty
for torture resulting in death at a minimum of twenty years' imprisonment.
Another proposal by Carlos Chipoco of the opposition Union for Peru (Unión
por el Perú, UPP) addresses torture together with other grave human
rights crimes such as enforced "disappearances." These proposals have remained
dormant since they were introduced a year ago. A sense of urgency did not
return until the airing of the television interview of tortured army intelligence
agent Leonor La Rosa in April 1997. Soon after, the congressional Justice
Commission began debating a proposal drafted by a working group of lawyers
and based on the Flores and Chipoco proposals, among others. As of this
writing, however, the final text of an anti-torture bill has not been agreed
upon.
In addition to the Convention against Torture, Peru has also ratified
several other international human rights instruments that prohibit torture,
including the International Covenant on Civil and Political Rights (ICCPR),(18)
the American Convention on Human Rights,(19)
and the Inter-American Convention to Prevent and Punish Torture.(20)
Under Peru's constitution, international treaties in force form part of
Peru's domestic law.(21)
III. THE INSTITUTIONAL CONTEXT: WEAKENED SAFEGUARDS AGAINST TORTURE
The Continuing Use of Emergency Powers
The torture of suspected guerrillas or collaborators occurs within a
framework of counterinsurgency measures that both facilitate such abuse
and shelter it from discovery or sanction. Despite the notable reduction
of guerrilla activity over the last three years, large regions of the country
remain effectively under military rule. More than a fifth of the population
is still governed under emergency regulations that place civilian authorities
under military command and suspend certain civil rights and freedoms guaranteed
under Peru's constitution, such as the right not to be detained without
a written warrant, freedom of movement and assembly, and the inviolability
of the home. Under international law, the government may legitimately maintain
these regulations only in times of "public emergency which threatens the
life of the nation. . . ."(22)
In many zones still under emergency regulations, the current level of
political violence does not pose such a grave threat as to warrant the
suspension of civil rights and individual guarantees. Even where security
conditions may justify emergency measures, the government may not interfere
with the enjoyment of non-derogable rights, such as freedom from torture.
While it is true that mechanisms to protect individual rights and ensure
the accountability of military and police personnel, like habeas corpus
and the monitoring responsibilities of provincial prosecutors, remain formally
in force, in practice they function much less effectively when civilian
authorities are subject to military command. The reduced efficiency of
these mechanisms increases the vulnerability of the population at large
to violations of non-derogable rights by greatly restricting the possibility
of legal redress.(23)
The police possess expanded powers to investigate suspects and formulate
charges under the "antiterrorism law," announced in May 1992,(24)
and the "treason law" of August 1992.(25)
Detainees suspected of offenses under these laws may be held for fifteen
days by the police before being placed at the disposal of a judge, whereas
ordinary detainees may be held only for twenty-four hours. In addition,
the police have powers to place detainees in incommunicado detention for
up to ten days without requiring a judge's authorization. Interrogation
of suspects during the lengthy period of incommunicado detention is routinely
accompanied by torture. The antiterrorist law established "faceless" courts
in which the identities of the judges, prosecutors and prosecution witnesses
were kept secret and the right to defense was restricted; those accused
under the "treason law" were tried by faceless military tribunals using
summary procedures that restrict rights related to legal defense even more
severely. These courts routinely accepted coerced confessions as evidence.
On October 15, 1997, the government terminated the mandate of the faceless
courts, which had attracted international as well as domestic condemnation
for their denial of due process and the right of defense. During the five-and-one-half
years of their existence these courts had convicted more than a thousand
people for security-related offenses, hundreds of whom are believed to
be innocent of any connection with terrorist groups and remain in jail.(26)
In response to domestic and international criticism, in 1995 the Fujimori
government had already modified Peru's antiterrorist laws to eliminate
some of their most criticized aspects.(27)
Decree Law 26248 restored the right to habeas corpus to people detained
under the antiterrorism laws, which had been suspended under Decree Law
25659. The suspension was in force for fifteen months, from August 1992
until November 1993. Law 26447 restored the right of prisoners to have
access to a lawyer from the moment of detention and requires the presence
of a prosecutor during interrogations to ensure that the police respect
legal procedure. This measure limited the impact of incommunicado detention,
although the prohibition of visits by family and relatives was maintained.
The law also lessened the danger of children being tortured, by increasing
the age at which children might be tried for terrorist offenses from fifteen
to eighteen years of age.
These reforms were an effort to defuse criticism of Peru's counterinsurgency
policy, and they do not eliminate conditions that facilitate torture. DINCOTE,
for example, is still empowered to hold suspects for up to fifteen days
before putting them at the disposal of a judge and prison facility. DINCOTE,
not the judge or prosecutor, decides whether or not to hold prisoners incommunicado,
and may still do so for periods of up to ten days. Many judges and prosecutors
continue to have only provisional status and may be removed by a committee
controlled by a government appointee, thus lacking the guarantees of tenure
that would encourage them to confront the army or the police in individual
cases. Some prosecutors do not appear to understand the importance of their
role as guarantors of due process or are afraid to exercise it effectively.
This is evident from the numerous cases documented in this report, for
example, in which detainees insist that the prosecutor was not present
during their interrogation, as required by law, even though the prosecutor
signed at the bottom of the suspect's statement. In one case, a prosecutor
was persuaded by army interrogators to don a military uniform to witness
a procedure in which a suspect was called on to "recognize" a stockpile
of weapons; by appearing before the detainee in military uniform, he discouraged
the suspect from going against the orders of his interrogators.
One provision of the antiterrorist law that has not been modified expressly
forbids the questioning in court of the police or military officials who
participated in the interrogation of the suspect. Introduced to protect
the security of police personnel, this rule drastically reduces the opportunities
of the defense to prove irrregularities in the conduct of interrogations
and searches, or to confront police interrogators with evidence of torture.
Military officials continue to violate the strict legal limitations
on their powers of arrest and interrogation. According to Law 25475, the
armed forces may, in exceptional cases, detain terrorist suspects in areas
only where there is no police presence, but they are required to hand them
over to the nearest police station immediately. The armed forces are not
authorized
to interrogate suspects, carry out searches, confront witnesses, or perform
any other investigative function.(28) However,
they do so frequently. In the case of Alto Yurinaki, documented in this
report, the army captured suspects, held them for up to five days, interrogated
them, tortured them and used them as informers while combing the area for
more suspects to arrest. When the detainees were finally handed over to
DINCOTE in Pichanaki, army officers were present in the police station
and tried to intimidate the detainees into ratifying what they had declared
under torture. In some cases documented by the IDL, judges in faceless
courts discounted confessions after finding that military personnel had
interrogated and tortured the suspects into confessing to actions that
they subsequently denied when later questioned--without torture--by the
police or the prosecutor.(29) However,
cases in which judges subsequently opened a prosecution against the torturers
are virtually unknown.(30)
Since the December 17, 1996 takeover of the Japanese ambassador's residence
in Lima by the MRTA, the Peruvian government has suspended its agreement,
negotiated in early 1993, whereby the International Committee of the Red
Cross was granted regular and prompt access to all detainees held on suspicion
of politically motivated crimes in Peru. President Fujimori rebuffed ICRC
President Cornelio Sommaruga, who visited Lima in August 1997 in an effort
to have the humanitarian organization's access restored.
Visits by the ICRC, which communicates its findings privately to the
government responsible, have proven effective in reducing the incidence
of ill-treatment, including torture and the forcible "disappearance" of
detainees. The continued denial of ICRC access underlines the government's
profound disregard for the rights of detainees.
Effects of the 1995 Amnesty Law
The effects of President Fujimori's amnesty law, promulgated in June
1995, fall like a shadow over the issues discussed in this report. This
law granted amnesty to all military or police personnel and civilians convicted
or implicated in human rights violations during the fifteen-year counterinsurgency
war, which started in 1980. While it was defended by the government as
a pacification measure, its real purpose was to prevent criminal investigations
into the grave human rights violations committed by the armed forces and
police. The law and a subsequent one intended to make it impossible to
challenge the amnesty in the courts, were universally lamented by inter-governmental
human rights bodies, including the United Nations Human Rights Committee,
the U.N special rapporteur on extrajudicial, summary and arbitrary executions,
the U.N. special rapporteur on the independence of judges and lawyers,
and the Chairman of the U.N.'s Working Group on Enforced or Involuntary
Disappearances.(31)
The deleterious effects of laws designed to sacrifice accountability
for political stability have been well illustrated in Peru. A week after
the passage of the law, eight members of the Colina Group, an army intelligence
death squad who had been convicted and imprisoned for the abduction and
murder of five students and a teacher from the Enrique Guzmán del
Valle University--known as the La Cantuta case--were released. Since that
date, abductions, death threats, and harrassment directed against known
opposition leaders, lawyers, and independent journalists have escalated,
and for many of these incidents the Colina group is believed to be responsible.
Many of the journalists targeted had investigated the La Cantuta case,
and the lawyers had assisted relatives of other Colina victims in their
search for justice. In addition, army intelligence officers have targeted
and tortured intelligence agents suspected of leaking data to the press
about this campaign of intimidation against journalists. Former army Maj.
Martín Rivas, the commander of the Colina group and one of those
released under the amnesty law, has emerged as the major suspect in the
murder of Mariela Barreto, a former intelligence agent whose dismembered
body was found on a road outside Lima in March 1997, as described below.
Another factor contributing to impunity in torture cases is the ability
of the police and the military to exploit ambiguities in the current definition
of the spheres of civilian and military justice, and to insist on trying
their own members in military courts that lack the most elementary guarantees
of independence and autonomy. Article 173 of the Constitution establishes
the jurisdiction of military courts over some crimes committed by members
of the armed forces and the National Police:
In case of a function-related crime, the members of the Armed Forces
and the National Police are subject to their respective jurisdiction and
to the Code of Military Justice. The provisions of the latter are not applicable
to civilians except in the case of the crimes of treason and terrorism
as determined by the law.
The National Police, as well as the armed forces, possess their own
structure of tribunals that adjudicate breaches of police discipline and
sanction offenders. However, these tribunals frequently also assert jurisdiction
over common crimes when they are committed by police on active service
or on police premises. Thus, in cases of torture or other abuses of civilians
by military or police personnel, the police or military justice authorities
often assert exclusive military jurisdiction, and the accused is placed
under the jurisdiction of the Supreme Military Justice authority. From
then on, military prosecutors and judges frequently ignore orders from
their civilian counterparts who seek access to detainees.
The legal definition of the crucial concept of a function-related crime
(delito de función) is set out in Article 14 of the 1991
Code of Criminal Procedure, according to which:
Military justice is limited to those crimes that are directly linked
to military or police functions, in that they affect juridical values that
are exclusively military and the disciplinary order of the Armed Forces
or National Police. In these cases the military and police personnel are
subjected to their respective jurisdiction and to the Code of Military
Justice.(32)
The norm states clearly that the classification of a crime as function-related
depends on whether the value affected is exclusively military or not. Torture,
the deliberate infliction of physical and mental suffering, affects a juridical
value--the integrity of the person--which clearly transcends the purely
military sphere.(33) Unfortunately, the
Code of Penal Procedure, although approved by Congress in 1991, has never
been put into practice.(34) A bill to reform
the code that has been presented to congress excludes any definition of
the concept of a function-related crime.(35)
Recent cases confirm that military thinking is miles apart from the definition
in the 1991 code. Military and police believe that torture, if practiced
by an officer on duty and on army or police property is properly a function-related
crime, even though the offended party is a civilian. The courts have frequently
supported this view. When civilian and military courts investigating a
torture case both claim jurisdiction, either of them may appeal to a higher
court for a ruling to decide competence, and ultimately the Supreme Court
must resolve the dispute. The Supreme Court has consistently passed human
rights cases to military courts,(36) including
the best-known case of all, the La Cantuta disappearances. As Human Rights
Watch/Americas noted in 1995,
In a November 1994 statement before the U.N. Committee Against Torture,
Justice Minister Vega claimed that between 1986 and 1993, 108 officers
and 453 non-commissioned officers (suboficiales) had been punished
by military courts for having practiced torture. Of that number, he said,
twenty-eight officers and 151 non-commissioned officers had been given
prison terms.
Because of the secrecy of military court proceedings and decisions,
it is virtually impossible to corroborate the minister's statement. In
the few cases known to the Coordinadora, investigations concluded with
military courts asserting that the allegations were not proven and therefore
no punishment was merited.(37)
Until the moment a jurisdictional dispute is definitively resolved,
it is common for investigations of torture cases to be heard in parallel
in both civilian and military courts, as occurred for example, in both
the Chamaya and La Rosa cases, analyzed in this report. The military judicial
authorities commonly hamper the civilian investigation, by ignoring or
delaying responses to court orders for access to defendants and witnesses.
Since military and police tribunals use summary procedures and can speed
up or slow down trials at their discretion, they may pre-empt a decision
by the civilian court by reaching a rapid verdict, as occurred in both
the Chamaya and La Rosa cases, detailed below. Despite the verdict, the
case continues in the civilian court until it reaches the Supreme Court
for a ruling on the jurisdictional dispute, and in such cases the Supreme
Court has almost invariably ruled in favor of the military. One of the
main arguments the court uses is that a verdict by the civilian court would
create double jeopardy, violating a basic due process right not to be tried
twice for the same offense.
Habeas corpus writs have been another source of conflict between the
attorney general and individual judges on one side and military justice
authorities on the other. Disturbingly, in some decisions in which the
the duty of the military to comply with habeas corpus rulings was at stake,
the Supreme Court supported the military courts, and threatened to prosecute
judges who had defended individual guarantees.
In December 1996, the Chamber of Public Law of the Higher Court of Lima
ordered military judges to allow drug-trafficker Demetrio Chávez
Peñaherrera (alias El Vaticano), convicted by a military court to
thirty years' imprisonment for treason, access to his defense lawyer. Military
justice authorities refused to comply, on grounds of national security.(38)
In another case, the same civilian court granted a writ of habeas corpus
on behalf of Capt. Gustavo Celsi Hurtado, formerly of the army, an insurance
broker accused of appropriating $1,050,000 from an army account, on the
grounds that Celsi was retired and his actions fell under civilian jurisdiction.
The army refused to release Celsi, and a military court later sentenced
him to four years' imprisonment.(39) In
response, Aljovín ordered that army Gen. Guido Guevara Guerra, the
president of the Supreme Council of Military Justice (Consejo Supremo de
Justicia Militar, CSJM), be prosecuted for abuse of authority, violence,
and resisting authority. In a crude retaliation, the CSJM announced that
it was opening impeachment proceedings against Aljovín for "obstructing
the judicial function" and "abuse of authority." Guevara announced that
henceforward no military judge would respond to any summons issued by a
civilian court.(40) The CSJM's impeachment
initiative foundered on lack of parliamentary support, even among legislators
of proven loyalty to the government. Nevertheless, the episode was illustrative
of the military's view of their courts as being wholly autonomous of the
civilian judiciary, despite a constitutional principle that justice is
single and unified.(41)
The CSJM also made a formal complaint to the judiciary's disciplinary
body against Sergio Salas Villalobos, Elizabeth Roxana MacRae Thays, and
Juan Cancio Castillo Vásquez, three judges of the Public Law Chamber
of the Lima Superior Court who granted habeas corpus petitions in the Robles(42)
and Cesti cases, as well as others, accusing them of "dangerous interference"
in the military's sphere of jurisdiction. On June 26, a Supreme Court panel
removed the three judges from their posts on the court, after having received
authorization to make appointments to the court from the Executive Commission
of the Judiciary only two days previously.(43)
The legal action pursued by the attorney general against the CSJM was heard
by a temporary panel of the Supreme Court, staffed by provisional judges,
who ruled that there was no basis on which to charge the military justice
authorities and instead called for the three judges responsible for the
habeas corpus rulings to be charged themselves with breach of public duty
(prevaricato). The panel also ruled that the military courts could
not be obliged to comply with an illegal habeas corpus ruling and that
the case against the members of the CSJM must be heard by a military court.(44)
The Supreme Court's call for the prosecution of the judges was rejected
by the Executive Commision of the Public Ministry on September 4. However,
the episode clearly revealed the precariousness of the situation of judges
who upheld constitutional guarantees against the executive branch.(45)
Curtailment of Powers of Constitutional Monitoring Bodies
Peru's constitution provides for autonomous public bodies to ensure
that legislation complies with constitutional principles and that justice
is administered fairly and in accordance with the law and human rights
principles. These are, respectively, the main functions of the Constitutional
Court and the Office of the Attorney General.(46)
Following his April 6, 1992 "autogolpe," Fujimori dissolved the Constitutional
Court (then known as the Court of Constitutional Guarantees (Tribunal de
Garantias Constitucionales) and fired scores of prosecutors and judges,
replacing them with temporary government appointees. Since the promulgation
of the new constitution in October 1993, the Fujimori government has taken
a series of measures to restructure the Public Ministry. After protracted
delays, a Constitutional Court was finally appointed in June 1996.
Essential to the watchdog function of both these bodies is their capacity
to make decisions without interference from the other branches of government
and based on principled legal argument rather than political allegiance.
As guarantors of the rule of law and redress against arbitrary acts by
the executive branch, their efficiency and independence has a strong, if
indirect, impact on violations of basic human rights, such as torture.
Yet so far, neither body has exercised effectively the functions prescribed
for it in the Constitution. The Constitutional Court, hamstrung from the
moment of its appointment by a law that required the votes of six out of
its seven members to declare a law unconstitutional, was further incapacitated
in June by the controversial impeachment and dismissal of three of its
members for issuing a ruling against the government. The powers of the
Office of the Attorney General, who is elected by his peers, were diminished
by a law passed in January 1997, which passed many of the post's key functions
to a government appointee.
The Attorney General of the Nation
In any aggressive policy to combat torture, the Office of the Attorney
General would play a key role in his capacity as titular head of the Public
Ministry. Apart from its responsibility for leading police investigations
and formulating indictments, the Public Ministry is required to ensure
that the procedures used during criminal investigations comply with the
law. The autonomy of the Public Ministry is essential to its ability to
exercise the dual role of prosecutor and guarantor, as when it it is called
on to protect the rights of those detained arbitrarily or mistreated while
in police detention. Public ministry officials, known as fiscales,
must be present when suspects are interrogated or sign declarations, and
must witness searches and post-mortem examinations. After arrest by the
army, a detainee's first contact with a civilian is with a provincial prosecutor
(fiscal provincial), who is expected to take over the investigation
as soon as the detainee has been transferred to the custody of the National
Police. If police violate the law, the prosecutor must initiate legal proceedings.
To be effective, therefore, prosecutors are required to act autonomously,
on no account simply as an arm of the police.
During 1996 and 1997, the Fujimori administration created new bodies
to supervise the reorganization of the administration of justice during
the transitional period in which new permanent personnel were to be appointed
to the judiciary and public ministry. These bodies included the Ejecutive
Commission of the Public Ministry (Comisión Ejecutivo del Ministerio
Público, CEMP) headed by the then-attorney general, Dr. Blanca Nélida
Colán and composed of senior prosecutors.The CEMP was charged with
administering the Public Ministry until December 31,1988, designated as
the end of the transitional period. Dr. Colán, known to be close
to President Fujimori, was appointed provisional attorney general after
the April 6 coup.(47)
A December 1996 law(48) prolonged the
period of office of the members of the CEMP, until its functions terminated
in December 1988, including that of its president, Dr. Colán, regardless
of who was elected as new attorney general at the end of Dr. Colán's
term in January 1997. The law shifted important powers formerly exercised
by the attorney general to Dr. Colán as president of the CEMP. They
included the power to prosecute Public Ministry officials for misconduct,
disciplinary powers, and control over the public ministry budget. In January
1997, another law gave the CEMP's president the power to appoint temporary
prosecutors.(49) They had been previously
appointed by a plural body, the National Council of the Judiciary, as the
constitution stipulates. These temporary prosecutors were eligible for
appointment to the commission and could therefore influence Public Ministry
policies directly.
In January 1997, Dr. Miguel Aljvín Swayne, a jurist noted for
his independent stance, was elected attorney general.(50)
In an interview after his appointment, Dr. Swayne announced that he would
devote himself to restoring the dignity and autonomy of his office despite
the truncation of his powers.(51)
Under Article 201 of the Constitution, the Constitutional Court, an
autonomous seven-member body, may declare legislation to be unconstitutional
and annul it; it also decides appeals for habeas corpus petitions and protection
of constitutional rights (amparo) when these have been denied
by a lower court.
Like the Public Ministry, the Constitutional Court has been kept under
tight reins by the pro-Fujimori majority in Congress. The seven members
of the court are elected by a two-thirds majority of Congress. Under the
court's regulatory law, no legislation can be overturned as unconsitutional
if two or more of the seven members of the court oppose it or abstain from
voting on the legislation. This voting requirement provides an enormous
advantage to the government in power if that government commands a significant
majority in Congress, as does the Fujimori administration. The court itself
divided on the voting-requirement issue, which opposition congress members
swiftly impugned as unconstitutional.(52)
Furthermore, the time period within which a law must be challenged as unconstitutional
was drastically reduced from six years to six months, thereby making it
impossible to challenge controversial decrees enacted in previous years,
including the Amnesty Law of 1995.
The moment of truth for the court occurred when it was called to rule
on the constitutionality of Fujimori's bid to stand for election in the
year 2000 for a third successive term. Article 112 of the Constitution
allows a president to stand for re-election for an additional term, but
does not permit a second successive re-election. On August 23, 1996, Congress
passed the so-called "Law of the Authentic Interpretation of Article 112
of the Constitution," according to which periods of office before the constitution
came into force in 1993 were not to be counted when tallying the number
of terms served by a president.(53)
On January 17, 1997, the court ruled, in an unopposed vote but with
four abstentions, that the law was "inapplicable."(54)
Following the legal reasoning that a decision on the "inapplicability"
of a law required only a simple majority vote,(55)
rather than the six-out-of-seven majority required for a ruling of unconstitutionality,
the judges approved the ruling. C90-NM congress members angrily accused
those who had voted for the ruling of exceeding their constitutional mandate.
In response to a series of apparent acts of intimidation against the
court members who voted for the ruling, opposition members of congress
succeeded in pressing for the establishment of a congressional commission
to investigate.(56) The commission reported
on May 6, but instead of addressing the illegal pressures that it was mandated
to investigate, it recommended the impeachment of the court's president,
Ricardo Nugent, and judges Manuel Aguirre Roca, Guillermo Rey Terry, and
Delia Revoredo, who had voted for the ruling. The impeachment prospered
in the government-controlled congress and the three judges were dismissed
from the court. Although the impeachment of Nugent was not approved, he
resigned in sympathy with his colleagues.
Although the legality of on legal grounds, it was defended by jurists
of standing across the political spectrum. The mechanism of impeachment
is limited in the constitution to "breaches of the constitution and for
any crime (they) may commit in exercise of their functions or up to five
years after ceasing in their functions." Since the regulatory law of the
Constitutional court does not have constitutional status and the judges
committed no crime, the impeachment appeared to be unjustified an possibly
unconstitutional.
Protests and demonstrations of support for the judges spread rapidly
across the country and there were strongly worded expressions of dismay
from the judiciary, the attorney general, the People's Defender, the Catholic
Church, the universities, and the great majority of Peru's newspapers.
Announced a few days before the inauguration in Lima of the 17th Annual
General Assembly of the Organization of American States, it also provoked
concern by the Inter-American Commission on Human Rights in a June 5 press
statement.(57)
A stark and well-publicized example of the government's willingness
to use torture as a counterinsurgency tactic occurred in early 1997, as
authorities were engaged in confrontation with members of the MRTA who
had taken over the Japanese ambassador's residence in Lima. Far from the
scene of the showdown, soldiers detained, tortured, and abused men, women,
and children they believed linked to the MRTA in Peru's central jungle
region. Human Rights Watch/Americas participated in a delegation of nongovernmental
human rights organizations that visited Villa Rica and Alto Yurinaki in
early April. During this visit and in Lima we interviewed most of the released
detainees, members of their families, provincial government authorities,
and village leaders. From these interviews it was possible to reconstruct
a clear picture of their detention and torture.
Between February 24 and March 12, 1997, more than forty coffee growers,
including eight minors, were detained by members of the 31st Infantry Division
of the Peruvian army in and around Alto Yurinaki, province of Chanchamayo,
in the Department of Junín. In a communique published in the national
press on March 18, the army claimed to have uncovered a plan by the MRTA
to attack and overrun the Alto Comaina No. 79 Counterinsurgency Battalion
base in Villa Rica, which the group was said to have infiltrated.(58)
The detainees, whose names, mugshots, and supposed aliases were also published,
were accused of belonging to the MRTA's "Juan Santos Atahualpa Brigade."
The communique also listed weapons and ammunition the army claimed to have
discovered buried in a ravine in Chancarmaz, close to Alto Yurinaki.(59)
Gen. José Huerta Torres, commander of the 31st Infantry Division,
produced the weapons for the first time on March 19 at the army base at
Pichanaki, where the press photographed them. Neither the provincial prosecutor
nor any of the accused were present at the place of their discovery, as
the law requires. The "search" appears to have been pre-arranged at a site
close to Alto Chancarmaz, where some villagers claimed to have been asked
by soldiers for tools, apparently to dig the hole where the weapons were
"discovered." Over the following three weeks, all but one of the detainees
were released by DINCOTE for lack of credible evidence on which to base
charges.
Many of the detainees had been pointed out by masked informers accompanying
the soldiers, held incommunicado for several days, and tortured repeatedly
before being handed over to the police in Pichanaki.(60)
As a result of persistent beatings and torture, they were forced to incriminate
themselves and others. Several of the minors alleged that they had been
forced to accompany the troops for several days to identify fellow villagers
as terrorists, after being threatened with further torture if they failed
to do so; others stated that they were interrogated by the police in the
presence of the military officers who arrested them, and that the officers
tried to make them stick to the statements they had made under torture
in the military base. Some alleged that the provincial prosecutor who was
present when they gave their statements to the police, as the law requires,
was dressed in military uniform. His appearance in uniform alongside the
military interrogators is likely to have deterred the victims from denouncing
their torture. Others insisted that the district attorney was not present
when they were interrogated.(61)
The cases of torture and abuse that occurred in Alto Yurinaki include
the following:
Paulino Solis Taype told Human Rights Watch/Americas that he was repeatedly
beaten by the army until he agreed to sign a statement "recognizing" the
stockpile of weapons:
I was so badly beaten and they said they would go on beating me if I
did not sign the statement. I was so scared, and there was a man there
in military uniform who told me to sign, and as he was in military uniform,
I signed. Only later when I had signed the paper they told me he was the
prosecutor.(62)
Inés Marilu Avila Gálvez, an agricultural student, was
detained on March 9, 1997 in Alto Yurinaki by a patrol of the 31st Infantry
Division from Pichanaki. Avila, together with other youths from her village,
was arrested after being made to walk in line past a masked man who pointed
her out by nodding his head. According to Avila and several other detainees,
the masked man was one of three men who had been accused of infiltrating
the army base for the MRTA to prepare for the attack and had been tortured
to force them to act as "informers." Often, the men, when challenged by
detainees, were unable to name the person they pointed out to the army.
On the night after Avila's arrest, the chief of the patrol, whom she
heard addressed as "Ronald," forced her to undress and tried to grope her
genitals. For four days she and the other detainees were made to accompany
the troops to various hamlets in the area, where more detainees were picked
up. Avila and two other young girls, Loida Soline Dionicio Antazu (17)
and her younger sister were pulled by the hair, dunked in water, and forced
to undress and wash naked in front of a group of male soldiers.(63)
Avila was accused of participating in an attack on the base at Villa Rica
on February 24, but was later able to prove from a bus ticket stub and
a passenger list that she had been in Lima on that date and had returned
to Alto Yurinaki afterward.(64)
Seventeen-year-old Emerson Wistrecher Cánepa was arrested with
Inés Marilu Avila Gálvez on March 9. He was tortured by being
dunked repeatedly in water for three hours, hung from the feet, and kicked
in the stomach. He was taken by helicopter to Eneñas, where the
dunking continued for another hour, and then forced to walk looking for
supposed weapons caches. He denied any knowledge of the weapons. He was
returned to Alto Yurinaki at about 6 p.m. on March 10, and tortured again
all night, including being subjected to water torture by the officer known
as "Ronald." Shots were fired close to his head. He was tied upside down
with an electrical cable and thrown into a tank filled with water, where
he was forced to spend the night.(65)
According to Avila:
We were on the second floor and we could hear how they were half-drowning
him. Afterwards, we saw that his whole neck was covered in blood because
they had hung him with a light cable, and he had gashes on his wrists because
they tied his hands with a rope. They pulled him by the hair and threw
him into the water. His face was all swollen, and they had deprived him
of consciousness about three times.(66)
Wistrecher was transferred to the military base at Pichanaki and released
without charge on March 14.
A Channel 15 television interview with Wistrecher, recorded after his
release, was shown on March 21. It included footage of the backroom of
a small grocery store in Eneñas where Wistrecher was tortured, showing
a car battery and a receptacle still containing water mixed with detergent.(67)
It also showed gaping wounds on his wrists, caused by the electric cables,
and on his shoulder, caused by a blow from a rifle butt. These wounds were
listed in a medical certificate issued by the hospital of La Merced.
Soldiers arrested fifteen-year-old John Izurraga Soto on March 10 in
Eneñas, together with his brother and sister-in-law, after four
masked informers had pointed him out. He was one of several youths detained
in Alto Yurinaki, held for several hours in the village school, and then
taken by helicopter to the military base in Pichanaki. During the helicopter
journey to Pichanaki, a colonel ordered him to throw himself onto the floor
of the aircraft. Soldiers pushed his head through the open door and forced
him to look down at the ground. When he said he knew nothing about MRTA
weapons, they pushed his body half out of the helicopter and held him there
in an effort to force him to talk. Soto was taken to the juvenile court
in La Merced and released without charge on March 14.
Félix Jorge Romero, a municipal employee, was detained on February
25 when on his way to make a bank deposit of money belonging to the municipality.
He was taken to the army base in Pichanaki, where he was tied by the hands
and feet, beaten around the head and body with sticks and rifle butts,
and kicked in the stomach. He was also repeatedly dunked in a trough full
of water laced with detergent, where he lost consciousness. While he was
unconscious, a watch and the money he had been carrying were stolen. He
was released later that day, after an interview with the commander of the
base, Col. Juan Loayza Miranda.
On February 27, Romero returned to the base to reclaim his money, and
he was detained again. Soldiers tortured him from 5 p.m. until about 8
p.m., and from midnight until 5 a.m. The soldiers tried to force him at
admit to collaborating with the terrorists and to incriminate Martín
Morales, the owner of the local gas station. Jorge was made to lie in a
ditch, which was filled with earth that covered his mouth. Shots were fired
close to his head, his arms were cut with knives, and he was threatened
with death. On March 2, he was taken to the DINCOTE headquarters in Oxapampa
suffering from severe stomach pains and an infected wound in his left ear.
After medical treatment in Oxapampa, on March 7 he was interned in the
2 de Mayo Hospital in Lima, where he received treatment. Romero showed
Human Rights Watch/Americas scars on his wrist, knee, elbows, and stomach.
He complained of numbness in his thumb and reduction of hearing in his
left ear. He told Human Rights Watch/Americas he was convinced his second
round of torture was a reprisal by soldiers at the base for his having
reported the loss of the money.(68)
Among the last prisoners to be released, on April 4, were Alfonso Rojas
Colca and José Teofilo Huamán Navarro, members of the Yanesha
indigenous community in Alto Yurinaki. Detained on March 9, they were taken
to the military base in Pichanaki, where they spent the night. On the following
day, they were taken back to Alto Yurinaki and, for the next three days,
were forced to accompany the troops around the area, visiting both San
Juan 71 and Eneñas. Both were also tortured. Huamán told
Human Rights Watch/Americas that he was tied with a rope, hooded, and hung
by the feet from the beam of a house belonging to his neighbor, Pancho
Díaz. The soldiers used a cup of water to make him choke. Both Rojas
and Huamán were later tortured together in a ravine in the hills,
where they were repeatedly dunked head-first in a stream, with soldiers
sitting on them to prevent them from moving. The soldiers wanted to know
where the weapons were hidden, but neither had any idea. Huamán
passed out. During the three days Rojas and Huamán were accompanying
the troops, neither was given any food. After returning to the base in
Pichanaki, both men were tortured again while being interrogated. Huamán
said that the provincial prosecutor was not present when he was made to
sign a declaration, although the prosecutor's signature appears on the
document. He was not allowed to read the statement.(69)
Martín Augusto Elguera, a Yanesha village official, was detained
on March 10 at about 6:30 p.m. by some twenty soldiers who were waiting
for him when he returned from work. He was taken to the village school
that the army was using as an interrogation and detention center. Arriving
at the school, he was immediately accused of being a terrorist by the commander,
who hit him on the chest. He was put in the classroom, where fifteen others
were being detained. Soldiers then took him to another room containing
a receptacle full of water. When he said he knew nothing of the weapons,
the commander said he was a tough nut, and pushed his head into the tank
of water. He was kicked repeatedly in the stomach. After thirty minutes
of this treatment, he gave in and pretended he was a member of the MRTA.
The torture stopped. He was asked who he knew in the village. He said he
knew two girls (Loida Dionisio and her sister, see above) and was forced
to show the soldiers where they lived. The girls were arrested, stripped
to their underwear, and dunked in the water. Later, the group was taken
into the jungle to look for weapons. After a fruitless walk for several
hours, with Elguera leading the way, the party returned to Yurinaki, where
Elguera was forced to identify more of his fellow villagers. He and two
other detainees, including Paulino Solís, were made to line up,
together with a man in a ski-mask. He was told to nod or shake his head
as the villagers filed past. On the following day, he and the detainees
were transferred by helicopter to the military base in Pichanaki.(70)
The Alto Yurinaki episode received considerable coverage both in the
press and on television. After its initial publicity on the dismantling
of the MRTA column, which caused great distress to those unfairly and publicly
accused of terrorism, the army remained silent and did not comment on the
allegations of torture or on the inexplicable scale of the mistakes made.
In a March 30 television interview, President Fujimori stated:
When situations like this occur, there may be detentions that are unjustified,
which is regrettable, but unavoidable. Later investigations will determine
if the detainees have committed an offence, and as this possibility is
discarded, they will be released. Of course, the ideal would have been
to have done a more careful follow-up, but given the urgency of the situation
these detentions took place. . . . If torture has taken place it will be
investigated and sanctioned. We don't want ill-treatment or torture or
violations of human rights.(71)
Despite Fujimori's assurances, to Human Rights Watch/Americas' knowledge
no officers or soldiers were detained or charged in relation to the abuses
committed in Alto Yurinaki, and, if an investigation was conducted by the
army, its results were never made public.
The use of torture in Peru predates the outbreak of guerrilla violence
in the 1980's and is not restricted purely to counterinsurgency operations.
Police throughout Peru commonly abuse suspects and use torture, which may
vary considerably in its gravity and effects, to obtain confessions and
information used to find and convict the culprits in common crimes. Everyday
cases of physical abuse of detainees by the police attract little attention
from the press; it is rare for torture victims in criminal cases to make
a formal complaint, and courts do not actively investigate such complaints
when they are made, unless the ill-treatment is so severe that the victim
dies. Peruvian law includes safeguards against police abuse, such as the
legal obligation of prosecutors to be present during interrogations and
when suspects sign their declarations. Prosecutors must also be present
during searches and post mortem medical examinations. According to the
Constitution, it is the attorney general's office, not the police, that
is responsible for directing criminal investigations. However, in practice,
prosecutors are frequently absent during interrogations or merely rubber-stamp
declarations without being present when they are drawn up. If prosecutors
do not enforce strict standards in the treatment of detainees, it is unlikely
that the police will do so on their own. Police investigations still depend
to a great extent on confessions to establish guilt; once a suspect has
been arrested, procedures center on gaining a confession rather then establishing
the truth. In the rare cases in which victims of torture, who are normally
too afraid to denounce abuses, do come forward to file a complaint, prosecutors
may open criminal investigations. Successful prosecutions, however, are
few. Two major factors contribute to impunity for torture. When police
are implicated in torture on police premises or in the course of duty,
internal police tribunals, which are subject to the military penal code,
often insist on jurisdiction. Further, police routinely fail to cooperate
with the civilian courts, and police tribunals are more likely than civilian
courts to acquit or give light sentences to those responsible for torture.
Second, many prosecutors and judges still have temporary tenure, making
them reluctant to energetically pursue cases that pit them against the
police. Even when torturers are prosecuted, the weakness of Peru's torture
laws leads to sentences far shorter than those for other crimes, such as
robbery.
An energetic and persistent prosecutor or judge, and victims or relatives
willing to fight the odds, can lead to convictions. The three cases discussed
below illustrate both the use of torture by the police and the difficulties
faced by civilians who try to prosecute those responsible.
Jhoel Huamán García
Jhoel Huamán García, a nineteen-year-old electronics student,
was detained by a police officer, Edson Cóndor Arredondo, at about
1:00 p.m. on May 26, 1995, in the city of Cerro de Pasco, department of
Pasco. He was arrested in a classroom of the institute of higher education,
where he was a student, and taken to the headquarters of the Department
Against Terrorism (Departamento Contra el Terrorismo, DECOTE), a departmental
branch of DINCOTE. Although Huamán had been accused by a robbery
victim a few days before, the police did not have a warrant for his arrest.
At midnight on the day of his arrest, he was carried naked by a policeman
to the local hospital, where he was pronounced dead on arrival. A doctor
who admitted Huamán and attended the initial autopsy later testified
that a police officer tried to dress the victim after he had arrived at
the hospital,(72) apparently in an attempt
to mask the fact that police had stripped the victim during interrogation.
The provincial prosecutor did not attend the initial autopsy, as required
by law. The doctors who carried out the exam, performed the day after Huamán's
death, failed to collect needed medical evidence and concluded that the
cause of death could not be determined.(73)
At the insistence of the Huamán family's lawyer, a second autopsy
was performed. On May 31, 1995, a forensic doctor from the Lima Morgue,
local forensic doctors, and medical staff from the hospital carried out
a detailed examination. Witnessed by the provincial prosecutor, they concluded
that Huamán had died from a cerebral hemorrhage caused by multiple
blows from a heavy object and internal abdominal injuries.
Rolando Huere Oré, a police officer who witnessed part of the
interrogation and was later released on bail, testified that he had seen
Huamán "in a state of complete nakedness, shivering with cold, and
with staring eyes" while Edson Cóndor Arrendondo interrogated him
in his office. Cóndor testified during the trial that Huamán
had torn off his own clothes to show that he had no scars and therefore
was not a criminal. According to Cóndor, Huamán ignored Cóndor's
orders for him to put his clothes back on, so the officer continued to
question the naked suspect. Cóndor asserted that Huamán's
bruises resulted from an accident. He (Cóndor) "went on interrogating
him, and when he asked him where the pistol was, he began to stumble and
then collapsed, falling onto his back. . . ."(74)
After a one-year investigation conducted by a civilian prosecutor, in
which the police did not seek jurisdiction, on July 17, 1996 the Second
Chamber of the Huánuco Higher Court sentenced Edson Cóndor
to six years in prison on a charge of battery resulting in death. Another
DECOTE agent, Wilson Germán Toralva Dávila, received five
years in prison. Huere, who was detained on a lesser charge, absconded
after being released on bail. On November 8, 1996, the Supreme Court increased
the sentence on appeal to ten years in prison for both Cóndor and
Torralva, the maximum sentence in the Peruvian penal code for the offense
of "battery resulting in death."(75) As
noted above, the code does not contain a specific provision for torture,
with penalties proportionate to the gravity of the offense.
José Eugenio Chamaya Pumacharis
José Eugenio Chamaya Pumacharis, a forty-seven-year-old taxi
driver, was detained at 8 p.m. on September 22, 1995, while driving his
vehicle in the La Molina residential district of Lima. The arresting police
patrolmen had become suspicious that he and his two teenage passengers
were about to commit a robbery. The police took the detainees to the police
station in Santa Felicia, where all three were beaten and tortured in the
courtyard of the precinct. The two teenagers, Katherine Keli and Carlos
Casapaico, later testified to police investigators that police had blindfolded
them and tied their hands behind their backs, made them lie on their backs
on a lawn, and forced them to inhale water by dunking their heads in a
bath filled with water. Medical examinations established that both had
been also beaten with a hard object. Chamaya, who was beaten on the chest
and also half-drowned, suffered a seizure and collapsed. Police paramedics
who were called to the scene were unable to revive him.(76)
The two officers responsible for the torture, José Zevallos Damacend
and Aldo Sucno Luna, fled.(77) This was
not the first complaint against Zevallos and Sucno. A previous complaint
to the 30th provincial prosecutor by Arturo Valle Castillo that the officers
beat him to get him to confess to a robbery he had never committed, was
never investigated. "Escándalo en delegación policial de
Santa Felicia," El Popular, September 23, 1995.(78)
but gave themselves up five days later and confessed.(79)
From the outset, the police judicial authorities insisted on retaining
jurisdiction in the case on the grounds that the crime occurred on police
premises and that the perpetrators were carrying out police functions at
the time.(80) The 40th provincial prosecutor
nonetheless opened a parallel investigation in the civilian courts on October
11, 1995, in which the two suspects were charged with homicide. The prosecutor
quickly found herself stymied by the police judicial authorities, who ignored
repeated requests to allow the suspects, now said to be under arrest in
a military prison, to give their statements. The civilian judge responsible
for the case refused to contest the authority of the police tribunal to
try the case.(81) By May 1996--eight months
after the crime--counsel representing Chamaya's widow was still urging
the civilian court to order the police authorities to bring the suspects
to testify.(82)
Eventually, one of the police suspects, José Zevallos, did present
himself to the civilian court. The police insisted that Zevallos be returned
to the custody of police judicial authorities after testifying. Zevallos,
however, tried to abscond at the court building, was detained in a corridor,
and, instead of being returned to police judicial authorities, was confined,
at the judge's orders, in Lurigancho, a public prison.
The public prosecutor finished her investigation and asked for a sentence
of twenty years' imprisonment for homicide. However, before the date of
the civilian court hearing, police justice authorities brought Zevallos
to a police court hearing in Lima on September 17, 1996, where he was promptly
sentenced to four years' imprisonment for "homicide" and "abuse of authority."(83)
Since that time, the investigation in the civilian court has continued,
but police judicial authorities have refused to respect at least five summonses
from the civilian judge to appear in court hearings. The other police suspect
has never attended a civilian court hearing or given evidence to the civilian
prosecutor or judge.(84)
Mario Jesús Palomino García
Five officers of the National Police in the Breña district of
Lima detained Mario Palomino, a thirty-seven-year-old skilled worker in
plastics, at about 12:15 a.m. on March 23, 1996.(85)
According to the testimony of his brother, José Enrique, Palomino
had been attending a farewell party for his cousin, a major in the National
Police, and left his brother's house at about 11:35 p.m. Mario Jesús
told his brother that he was going to walk back to his apartment on General
Vidal street to see his children, a distance of some 200 yards. Palomino
never arrived. He was intercepted by a police patrol that was on the look-out
for street drug dealers and taken off in a police vehicle, which continued
to pick up suspects for another two hours. When José Enrique discovered
in the morning that Palomino had not returned home, he went twice to the
Breña police station, but he was told that the station's cells were
empty. Later, a friend told him that several neighbors had witnessed Palomino
being arrested by the patrol.
Eventually, José Enrique found his brother at Lima's central
morgue. According to a National Police document, Jose Enrique recalled,
With profound pain I confirmed that it was my brother. As I came close
to his face to give him a kiss, I noted that there was blood mixed with
saliva on his right lip (sic) and that there were tears of blood in his
eyes, and that his wrists were a deep purple color. When I saw this I became
more interested in inspecting my brother, and I noticed that his cheeks
were swollen, that he had a bruise on the left side of his forehead. In
fact, he had several signs of blows on his neck and face. I lifted his
striped maroon-colored shirt, and he had bruises on his right arm. At that
moment I was brusquely removed from the room by the guard, who had only
just become aware of my presence. . . .(86)
The autopsy, performed on March 24, found multiple cuts and bruises
on Palomino's back, pelvis, wrists, arms, right thigh, left knee, and forehead.
It concluded that these signs were compatible with having suffered trauma,
but that they were not the cause of death. Death resulted from a cerebral
and pulmonary oedema that could have been caused by a variety of other
factors.(87) The testimonies of the five
agents who detained Palomino and of other detainees picked up that night
establish that Palomino was beaten after being put in the police vehicle.
According to officer Luis Alberto Sánchez Vásquez, an officer
with the surname Revolledo hit Palomino repeatedly with a flashlight on
various parts of his body.(88) Other suspects
picked up by the patrol car testified that they saw him in the police vehicle
handcuffed, still lying on his stomach on the floor of the vehicle, unconscious,
and smelling of alcohol. The police continued to board suspects until the
vehicle was filled with as many as fifteen detainees. Several sat on Palomino's
prostrate body, which smelled of excrement. One of the detainees testified
that Revolledo joked, saying: "Look at this coward, he's even shit himself."
He warned the others, "anyone who behaves badly will end up like him."(89)
At 4 a.m., several hours after bringing Palomino the station, the police
realized that he was dead. The officer in charge of the station, Maj. Víctor
Manuel Cabrejos Pastor, told one of his subordinates to dump Palermino's
body in the street in another precinct. The subordinate refused(90)
As in the Chamaya case, two parallel investigations were opened into Palomino's death, one in the 14th criminal court of Lima, and the other in a police court, the Sixth Permanent Court of the Second Police Judicial Zone. Despite insistent petitions from the victim's lawyers requesting that exclusive jurisdiction be established, if necessary by an appeal to Supreme Court, the civilian judge refused to contest the police court's jurisdiction. According to a police report dated April 2, 1996, four of the officers who participated in Palomino's arrest were in detention, under the authority of the 14th criminal Court of Lima.(91) In November 1996, the judge of the 44th criminal court in Lima, to whom the case had been transferred, charged Luis Alberto Aliaga Trigoso, Humberto Epifanio Revolledo Zevallos, Luis Alberto Sánchez Vásquez, and Carlos Burt Morales García with "aggravated homicide" and "exposure to danger or abandonment of persons in danger." Víctor Manuel Cabrejos Pastor and Aliaga were also accused of attempting to conceal the incident. The trial has continued in the 44th criminal court and, at this writing, is currently in its final public summing-up stage. It also continues, so far without a verdict, in the police court. Since the military court can reach a final verdict more quickly than is possible in a civilian trial, which must go through several appeal stages before a final decision is made, civilian proceedings in the Palomino case are at risk of being aborted by a preemptive military court ruling. In other such cases, the Supreme Court has almost invariably supported the military court.
In April 1997, Peru was stunned by reports of the torture and apparent
summary execution of members of the country's military intelligence services.
The victims, Leonor La Rosa Bustamante and Mariela Barreto Riofano, were
both agents with the Army Intelligence Service (Servicio de Inteligencia
del Ejército, SIE) who were suspected of leaking to the press information
about illicit military intelligence activities, including serious human
rights abuses.
Press reports based on the leaked information confirmed serious accusations
against the military: army intelligence had been engaged in secret operations
to carry out surveillance on and intimidation of opposition politicians
and journalists; the SIE maintained installations in the basement of the
army headquarters in Lima, which were used for the interrogation of terrorist
suspects and in which torture was regularly practiced; and members of the
death squad known as the Colina Group continued to frequent army premises
although they were officially reported to have been discharged from the
army.
On April 6, 1997, "Contrapunto," a television program on Frecuencia
Latina (Channel 2), featured an interview with thirty-six year-old La Rosa,
filmed secretly in Lima's military hospital. La Rosa, who could walk only
with assistance, described how she had been detained and tortured on two
separate occasions by other army intelligence officers. The television
camera clearly showed burns and scarring around the fingernails of her
right hand, caused, she said, by electricity. She was initially detained
on January 16, 1997, and tortured for five days in SIE headquarters in
Lima, located in a basement of the General Command of the Peruvian Army
(Comandancia General del Ejército Peruano), known as the Little
Pentagon. She was then admitted to the military hospital with head injuries.
She was discharged from the hospital on January 27 and given fifteen days
of convalescent leave.
When La Rosa returned to work on February 11, she was re-arrested on
the orders of Gen. Juan Yanque Cervantes, head of the Directorate of Army
Intelligence (Dirección de Inteligencia del Ejército, DINTE),
and taken back to the cellar of the Little Pentagon. There, she was again
beaten and systematically tortured for a week. This time, the beatings
provoked a vaginal hemorrhage. On February 19, she was again admitted to
the military hospital. Following an emergency operation to stop the bleeding,
she suffered respiratory failure on three occasions.(92)
From her hospital bed, La Rosa told reporters and visiting members of congress that her second interrogation had centered on the intelligence services's plans code-named Bermuda, Narval, and El Pino. The "Narval" plan involved an October 17, 1996 bomb attack on the local station of Channel 13 television in Puno, in which an SIE operative and former Colina Group member participated. The "Bermuda" plan was an initiative to intimidate television journalist César Hildebrandt, and the "El Pino" plan was designed to intimidate Heriberto Benítez, a lawyer defending Gen. Rodolfo Robles Espinoza.(93) La Rosa named three SIE officers as directly responsible for her torture: Com. José Salinas Susanaga, Maj. Percy Salcedo Sandoval, and Maj. Ricardo Anderson Kohatsu. She said that the interrogation and torture was supervised by the head of the SIE, Col. Carlos Sánchez Noriega.(94)
La Rosa's startling allegations coincided with the macabre discovery
of a corpse found in plastic bags on March 23 on a roadside fifteen miles
north of Lima. Two days later, the parents of Mariela Lucy Barreto Riofano
identified the body of their daughter,(95)
an SIE agent and a friend and colleague of La Rosa. The body, found by
a local teenager who saw two men dump the bags from a jeep with tinted
windows, had no head, hands, or feet; they had been severed with surgical
precision.
Barreto had entered the Army Intelligence School in 1989, where she
was a pupil and lover of Martín Santiago Rivas, then an instructor
at the school. Rivas later became notorious as the head of the La Colina
Group. By that time, Rivas had recruited Barreto to work in the group,
and it is likely that she had intimate knowledge of the actions of the
death squad. Rivas was detained and convicted for his role in the Cantuta
killings and other abuses. In June 1995, a week after the passage of the
amnesty law, Rivas walked free.(96)
Apart from their friendship and association as SIE agents, La Rosa and
Barreto were linked by the fact that both were suspected of leaking information
on secret intelligence operations to the press. In January 1997, both agents
were placed under investigation by the inspector general of the army.(97)
In February, La Rosa was cited by the daily La República as
one of three agents under investigation by the army Inspectorate General.
According to the same article, Barreto was also being investigated and
was reportedly detained and tortured by the same officers who tortured
La Rosa.(98)
The scandal provoked by the La Rosa and Barreto cases greased the normally
rusty wheels of Peruvian justice. Within forty-eight hours of the revelations,
the four intelligence officers named by La Rosa had been suspended, detained,
and charged with "abuse of authority" under the Military Penal Code.(99)
Army commander Gen. Nicolás de Bari Hermoza Ríos virtually
admitted that the torture allegations were true.(100)
In addition to this investigation, La Rosa was formally charged under military
penal code with "disobedience" and "disloyalty."
Civilian prosecutors also opened investigations in both the La Rosa
and Barreto cases. The Attorney General of the Nation, Miguel Aljovín
Swayne, stated in both cases that ordinary crimes were involved and ordinary
criminal, not military, courts were entitled to try them.(101)
The president of the Supreme Council of Military Justice, Gen. Guido Guevara,
insisted that the La Rosa case fell under military jurisdiction because
the events involved military personnel, took place in a military base,
and were connected to the intelligence service. The army did not assert
jurisdiction in the Barreto case.
From the outset, the La Rosa case ran into obstacles in the civilian
courts. Judge Gaby Márquez of the Sixth Criminal Court rejected
the indictment drawn up by the prosecutor on the grounds that no statements
had been taken from the accused. In fact, the prosecutor had been denied
access to the men by the military authorities and had not been allowed
to interview La Rosa in the hospital, where the military was holding her
incommunicado.(102) In June, Judge Márquez
applied to the Supreme Court to rule on the jurisdiction dispute by granting
the civilian court sole competence. La Rosa's lawyer, Heriberto Benítez,
who was also representing her in the case against her opened by the military
justice authorities, publicly complained that military justice officials
were preventing him from seeing his client, viewing the case file, and
participating in the inquiries. The military officials claimed that Benítez's
presence could influence the witnesses and impede the investigation. On
April 19, Benítez was banned for four months from litigating in
military courts for making comments in a national newspaper that were "insulting
to the majesty of the military courts and offensive to the honor of the
persons who represent them." The military judge promptly appointed an army
lawyer to defend La Rosa in his place.(103)
La Rosa told Benítez in a letter from the military hospital that
an army colonel acting on behalf of the army commander-in-chief had visited
her in the military hospital and tried to persuade her to drop the accusation
in return for a pension and a ticket to the United States for her and her
family. She complained that she was being held in the hospital illegally
without access to her lawyer, and that military officials were pressuring
her into signing statements that she never made.(104)
Harassment of La Rosa and her family did not stop there. In a case of police
abuse that few believed to be coincidental, on June 27, police from the
Nueva Esperanza precinct arrested La Rosa's half-brother Miguel Cabezudo
Bustamante three blocks from the home he shared until recently with La
Rosa and her family. Police asked him for his documents in the street and
after he showed them his voting credentials they threatened him, hit him
and told him they were going to arrest him for a breach of public order.
He was taken to the station where he was beaten again. He was released
at 4:30 p.m the following day with cuts to the head and forehead and a
bruised back.(105)
On May 9, ignoring a petition lodged by Judge Márquez for the
military court to suspend the trial until the Supreme Court had ruled on
the jurisdiction issue, the Supreme Council of Military Justice convicted
the four officers to eight years' imprisonment after finding that they
had tortured La Rosa with a blow-torch on her hands and ankles.(106)
They also ordered them to pay La Rosa compensation of 5,000 soles (approx.
US$ 1,900) apiece. The hearing was conducted in camera according to summary
military procedures, depriving the public of any possibility of knowing
who in the chain-of-command authorized or condoned the torture of La Rosa.
La Rosa remained in incommunicado custody in the military hospital until
June 5, when the military authorities finally acceded to a court order
for her discharge and transfer to a private clinic. During this time, in
defiance of a habeas corpus writ on her behalf, she had been denied visits
from her attorney, and allegedly intimidated and threatened by military
officials who included members of the Colina group.(107)
During the second week of June, the minister for women's affairs, Miriam
Shenone, visited La Rosa in the clinic and offered on behalf of the government
to pay for her rehabilitation in a hospital abroad. By October, La Rosa
was still hospitalized in Lima, but was expected to travel to Mexico for
treatment paid for by the government. The case against her in the military
court, however, remained open.
On August 6, a Supreme Court panel, four of five members of which were
temporary judges, ruled that the Supreme Council of Military Justice should
enjoy exclusive jurisdiction in the La Rosa case, thus effectively frustrating
any public accounting. According to press reports, an inspection of the
basement of the army headquarters in Lima, scheduled for August 8, which
had been ordered by the civilian judge, was canceled.(108)
VII. INTIMIDATION OF JOURNALISTS AND OPPOSITION PERSONALITIES
In parallel with executive branch actions undermining the authority
and autonomy of the judiciary and legal bodies established to protect rights
and the rule of law, journalists and politicians who brought government
abuses to public attention were subjected to a series of physical attacks
during 1997.
In response to the public disquiet aroused by this violence, government
spokespersons, including police authorities, the minister of the interior,
and president Fujimori himself, claimed that ordinary criminals were responsible.
Although all of the threats and attacks were made anonymously, and no group,
government or otherwise, claimed responsibility, the explanation repeatedly
offered by the government was unconvincing. If the attacks were the work
of ordinary thieves, none of them were caught and brought to justice. In
many cases, the authors left behind valuable items belonging to their victims,
and in one case they burned a valuable car they had stolen. Some of those
intimidated received specific threats warning them to stop meddling in
topics known to be sensitive to the government. In addition, the attacks
mirrored and accompanied open government harassment of key individuals
in the media, including the owner of one of the country's most important
television stations, and the management of its most vociferous opposition
daily.
Most, if not all, of the victims of this persecution were linked by
having spoken out against the government or having published damaging information
likely to affect its prestige and popularity. There was, indeed, a more
specific link, which reinforced the impression shared by the victims of
these attacks that they were the work of military intelligence agents.
Many of the targets had contributed--as journalists, congressmen, former
military officers, lawyers, and human rights activists--to exposing the
activities of the so-called Colina Group. Evidently these individuals were
perceived by the intelligence services as conduits to the public of the
secret intelligence information allegedly leaked by La Rosa and Barreto.
Other individuals were apparently targeted because of their public defense
of negotiations between the government and the MRTA to solve the hostage
crisis, a solution known not to be favored by army hardliners.
Peru has a vigorous opposition press, and reports of official misconduct
and sharp critiques of government policy are frequently aired. Indeed,
the importance of the Peruvian media in revealing official malpractice
is all the greater for the lack of an effective and independent judiciary.
The torture cases described in this report were publicized largely as a
result of valuable investigative work by a number of television stations
and newspapers, such as Frecuencia Latina (Channel 2), Channel 15, the
daily La República, and the weekly magazine Caretas.
The media have also played a key role in exposing corruption and dirty
tricks both in the private and public sectors. For instance, Channel 2
published damaging information about the earnings of president Fujimori's
advisor and de facto head of the national intelligence service, or SIN,
Vladimiro Montesinos, as well as explosive revelations about wire-tapping
by the SIN. In retaliation for its investigative reporting, the government
cracked down on Channel 2, stripping its owner of Peruvian citizenship
and effectively eliminating the news program that had aired the reports.
Caretas carried in August a special report questioning the authenticity
of president Fujimori's claim to Peruvian birth. The attacks documented
below are troubling, not only because of the harm caused to the individuals
affected, but because, taken together with cases of overt harassment, they
represent a coordinated effort to silence public criticism.
One of the most troubling recent incidents took place in April, when
Channel 2 Television, also known as Latin Frequency (Frecuencia Latina)
began to broadcast news about the Leonor La Rosa case. Channel 2 was not
noted for reporting critical of the government until April 6, 1997, when
its program Counterpoint (Contrapunto) broadcast the explosive feature
on the torture of Leonor La Rosa and the murder of her army colleague,
Mariela Barreto, mentioned above. During the months that followed, the
government, with the evident and troubling support of the courts, resorted
to one arbitrary measure after another to silence the station. Frecuencia
Latina broadcast further disclosures highly damaging to the government--in
particular to the intelligence services and the army--apparently based
on information obtained directly from intelligence sources. The most startling
was a Contrapunto investigation, revealed in July, which showed that the
SIN had tapped the phones of at least 197 businessmen, politicians, and
public personalities, including Foreign Minister Francisco Tudela and former
United Nations Secretary General Javier Pérez de Cuellar, who had
run against Fujimori in the presidential elections of 1994. In a follow-up
report on September 14, Contrapunto gave details of the equipment used,
the main targets of the eavesdropping, and the location of some of the
listening stations. It gave viewers a glimpse of secret intelligence documents
describing the "Emilio Plan," a plan to monitor private telephone conversations
of opposition leaders, in particular of Javier Pérez de Cuellar.
In February 1997, new espionage plans, known by the names of Halcón
and Tucán targeted Javier Diez Canseco, Henry Pease, La República
Editor-in-Chief Gustavo Mohme, César Hildebrandt, and personalities
of the political center. These journalists and congressman had all received
death threats or been the victims of physical attacks.
A naturalized Peruvian of Israeli origin, Baruch Ivcher Bronstein was
the majority shareholder of Channel 2 television. On May 23, 1997, the
combined command of the armed forces issued a pronouncement denouncing
Ivcher for "using the medium of communication he owns to distort situations,
twist facts, and broadcast comments from a clearly distorted viewpoint."
Referring to the prestige won by the armed forces in defending the
nation "on the internal as well as external front," the communiqué
accused Ivcher of "seeking to damage [this] prestige with negative intentions
that affect not only the armed forces, but the Peruvian people in general."(109)
In previous months, the station had denounced surveillance by helicopter
and inquiries and pressure from the tax authorities seeking to recover
alleged tax debts.(110) When Channel 2
journalists publicly denounced this as harassment, causing public concern,
the government denied that any investigation had taken place. (111)
Military justice authorities ordered Ivcher to appear to ratify his
allegations of harassment. When Ivcher failed to present himself, they
ordered his arrest for resisting authority.(112)
Ivcher, then in Miami, expressed fears of returning to Peru because of
death threats.(113) Meanwhile, articles
published in the weeklies Sí and Gente accused Ivcher
of associating with the commander-in-chief of the Ecuadorean armed forces
and of supplying weapons to the Ecuadoreans during and after the 1995 armed
conflict between Peru and Ecuador. Ivcher strenuously denied the accusations
and alleged that they emanated from the SIN and from Vladimiro Montesinos.
Almost simultaneously, the government announced a tightening of the laws
against naturalized Peruvians, who then risked losing their citizenship
if they committed offenses against the state, such as "terrorism" and "treason."
The law was seen as aimed specifically at Ivcher.(114)
During the second week of June, the C90-NM block in Congress passed
a motion "deeply lamenting" a report, also broadcast on Channel 2's "Contrapunto"
program, about the allegations published in Sí against Ivcher.
Channel 2 had sent reporters to Ecuador to discuss the allegations with
senior military officers; the commander-in-chief of the Ecuadoran armed
forces, Francisco Moncayo, stated in an interview that the documents published
by Sí were false and that he did not know Ivcher.
On July 13, a few hours after the broadcast of the first wiretapping
expose, the official gazette El Peruano published a resolution issued
by the Immigration Directorate (Dirección de Migraciones) revoking
Ivcher's citizenship. The grounds stated were that his application, filed
thirteen years previously, had irregularities, and that Ivcher had failed
to renounce his Israeli citizenship. Apart from the striking coincidence
that these alleged irregularities should come to light for the first time
in the middle of a major campaign by the government against Channel 2,
the decision was legally suspect; under Peruvian law an immigration official
does not have powers unilaterally to overrule a published government decree.
It was also unconstitutional and violated a basic precept of international
human rights treaties ratified by Peru regarding the right to nationality.(115)
The final blow in the campaign against Ivcher came on September 15,
1997, when the Chamber of Public Law of Lima's High Court handed over control
of Frecuencia Latina to its two largest minority shareholders, the brothers
Samuel and Mendel Winter, depriving Ivcher of his right to remain at the
helm of the station. The three judges who ruled on the case were temporary
appointees nominated by a government official, after the Supreme Court
had removed the titular judges from the bench.(116)
The ruling, which was in response to an appeal by Ivcher's lawyers against
a decision by judge Percy Escobar upholding the Winters' right to take
over the station, allowed the new managers of the station to call a shareholders'
meeting to appoint a new board of directors and restructure its staff and
policy. The court also failed to overturn a decision by Escobar declaring
legal the immigration decision stripping Ivcher of his Peruvian nationality,
which his lawyers had challenged by filing a petition for protection of
his constitutional rights (amparo). The High Court chamber refused
on procedural grounds to accept a final appeal by Ivcher's counsel to the
Supreme Court. Instead of ruling on the complaint, the Supreme Court panel,
composed of six judges, five of whom were temporary appointees, referred
it to the Constitutional Court. Until the Constitutional Court ruled on
the issue, domestic remedies remained open and Ivcher was prevented from
taking the case to an international forum such as the Inter-American Commission
on Human Rights. Following the dismissal in June of all but one of its
independent members, the Constitutional Court offered Ivcher no possibility
of an impartial hearing.
At 7:30 a.m. on September 19, before most of the staff had arrived,
the Winter brothers, accompanied by Judge Escobar, judicial police, and
private guards, took over the premises of Frecuencia Latina. The staff
of Contrapunto and other Channel 2 employees instantly resigned.(117)
Although many observers believed the army high command to be the main
force behind the actions against Channel 2, President Fujimori was more
than a willing accomplice. He himself fired a personal broadside at the
Peruvian press, and chose to do so during his inaugural address to the
General Assembly of the Organization of American States on June 1: "Just
as the press denounces cases of government corruption or breaches of the
law by private individuals, there is, in some cases a concealment of the
truth, a cover-up, bribery of certain journalists so that they attack those
who are trying to eliminate corruption."(118)
Fujimori named no names, but several journalists other than Ivcher felt
themselves to be under pressure. Ricardo Palma Michelsen, managing director
of Radio Miraflores, an opposition radio station, was arrested on May 23
for tax evasion. On the following day, César Hildebrandt was sued
by a C90-NM congressman for allegedly using false documents in a televised
investigation of an alleged network of local government officials who promoted
Fujimori's candidacy in the 1994 elections.(119)
During the second week of June, two television stations aired advertisements
paid for by the president of the Council of Ministers and the Minister
of the Interior that attacked the version of events related to Javier Diez
Canseco and Blanca Rosales that had been published in the newspaper
La República. The advertisement accused the paper of a campaign
to damage the prestige of the armed forces.
Other troubling cases include:
At about 11 p.m. on March 16, 1997, Gustavo Saberbein, a former minister
of the economy, arrived home with his wife and son after a family get-together
in Lima. Saberbein had been held hostage at the Japanese ambassador's residence
after the building was overrun by MRTA guerrillas the previous December.
He was among the hostages released soon after the crisis began. Since his
release, he had advocated publicly that the government negotiate an agreement
with the MRTA to facilitate a peaceful solution to the crisis. As he drove
into his driveway, his car was followed by a vehicle with five men inside,
one of whom got out with a pistol drawn. Saberbein, who was already in
the house, heard his wife's desperate shouts and drew a weapon he carried
for his own protection. Heading back to the garage, which was in darkness,
he found himself facing the gunman, who fired at him while other shots
were fired from within the car. He returned the fire. The car then drove
off with all its occupants aboard. Bullets had penetrated the door of the
house, the car, and the inner wall of the garage. For three months prior
to the attack, Saberbein had received threatening telephone calls from
anonymous callers warning him not to make any more public declarations
about the crisis at the residence of the Japanese ambassador and not to
continue criticizing Fujimori's economic policy.(120)
On March 19, three days after the attack on Saberbein, unidentified
gunmen kidnaped and beat three occupants of a Nissan sport utility vehicle
owned by Javier Diez Canseco, an opposition congressman of the United Left
(Izquierda Unida, IU). Diez Canseco had also been among the hostages released
by the MRTA in the early days of the embassy occupation and had advocated
negotiations with the MRTA. Diez Canseco was not in the car, but had made
it available to his friend Patricia Valdez, a distinguished Argentinean
academic and human rights advocate, to take her to Lima's Jorge Chávez
Airport. Accompanying Valdez were Diez Canseco's chauffeur, Nilton Fernández,
and his bodyguard, Edilberto Arévalo. While they were waiting at
an intersection, they were attacked by a group of armed men who fired shots
into the air and at the vehicle and beat on its windows, forcing them to
open the doors. Arévalo was hit by a bullet in the leg. According
to Valdez:
Before lying down first on the seat and later on the floor of the jeep,
I saw an individual on the right-hand side of the vehicle, very close to
the window where I was, who looked like he was putting on or taking off
a dark ski-mask, and he had on a flak jacket with the inscription "police"
on it."(121)
The attackers entered the car, threatening and beating the three occupants
and forcing them into the back seat. The three assailants then transferred
the victims to another vehicle, which drove off. During the journey, the
men took identity documents from Arévalo and Fernández, interrogated
them, and continued to hit and threaten them. "We are going to take you
to the beach and then you will see what's going to happen to you," said
one.(122) At one moment they operated
a siren. Finally, they returned the documents to the driver and Arévalo
and set all three victims down on the road opposite the army barracks of
San Martín. The Nissan was found, a smoldering wreck, on March 22.
Witnesses said that it had be burned by men with FAL rifles, accompanied
by other men in a vehicle with tinted windows.(123)
On April 3, the minister of the interior told Congress that common criminals
were involved in the incident and that the police had arrested a gang of
car thieves who specialized in off road vehicles. Fujimori reaffirmed the
version that common criminals were involved. However, Edilberto Arévalo,
the wounded bodyguard, later told police that photographs of the criminal
suspects identified by authorities bore no resemblance to his attackers.(124)
On May 26, the National Police presented another suspect. The man, Martín
Oré Yupanqui, claimed to have been hired as a driver by a gang of
thieves known as the Commandos. However, neither Arévalo nor Fernández
recognized his appearance or voice. His confession contained five significant
inaccuracies, raising suspicions that it may have been induced.(125)
On April 1, four heavily armed men abducted Blanca Rosales, general
editor of the daily La República, at about 12:30 a.m. while
she was driving home accompanied by the head of the paper's political section,
Juan de la Puente.
La República, a left-of-center opposition
newspaper, has campaigned for years against the illegal activities of the
SIN and the Colina Group and was the first newspaper to reveal details
of the Narval and Pino army intelligence plans. The paper also published
details of the arrest of SIE agents accused of leaking information on the
plans to the press.
A blue Toyota car without license plates crossed the path of the journalists'
vehicle, and its occupants forced Rosales to stop at gunpoint. There was
a brief struggle during which Juan de la Puente managed to escape. One
of the gunmen tried to shoot at de la Puente, but his weapon jammed. As
in the Diez Canseco incident, the men split into two groups, one of which
drove Rosales off in her own car, while the other followed in the other
car. De la Puente tried to follow his editor in a taxi but lost sight of
them and went to the police.
After a drive of about half an hour, during which the gunmen threatened
to kill her several times, Rosales was released and abandoned, still in
her car, in the Lima district of Barranco. The car was intact and no documents
or credit cards were stolen.(126)
On June 25, 1997, César Hildebrandt, presenter of the television
program En Persona and a celebrated critic of the Fujimori government,
demanded that the interior minister guarantee his and his family's personal
safety after his program broadcast revelations by La Rosa about a plan
concocted by the SIE to kill him in December 1996. He also received a telephone
call threatening the safety of his son. Within days of the revelations
of the plans to kill him, three armed men broke into a house in Lima and
beat and threatened an En Persona film crew that was preparing to
film an interview. One of those attacked, Edwin Montoya, was a staff member
of the People's Defender, or ombudsman.(127)
At about 7:45 p.m on July 1, 1977, three unidentified men intercepted
Luis Angeles Laynes, political editor of Ojo, a daily newspaper,
in the street close to his home in the San Miguel district of Lima. The
men tried to force him into a waiting car but were unable to do so because
passers-by went to his defense. The men got back in their car. Angeles,
who was bleeding after being hit several times in the scuffle, tried to
take the car's license number. One of the men got out and hit him over
the head with the grip of his revolver. The journalist was assisted and
taken to the hospital by local residents.
According to press reports, Angeles had been receiving anonymous death
threats by telephone at his home and office for six months prior to the
attack. Other staff on the paper had also been threatened. His attackers
showed no interest in the money, credit cards, or personal items he was
carrying.(128) Ojo, a popular tabloid,
had recently been publishing articles critical of the government, and Angeles
had been covering the La Rosa case, according to his senior editor.(129)
Former Gen. Rodolfo Robles Espinoza has been a frequent target of death
threats because of his key role in exposing the involvement of the Colina
Group in the La Cantuta disappearances and other abuses committed by the
group.(130) On November 26, 1996, SIN
agents violently abducted the general as he was leaving his home. They
beat him and sprayed him with mace and took him to an army barracks where
he was accused of slandering the armed forces, insulting a superior, and
disobedience. The abduction and charges were due to public allegations
made by Robles that implicated members of the Colina Group in the bombing
of the Puno station of Global Television the previous October. Due to the
international outcry provoked by Robles's arbitrary arrest, Fujimori admitted
that an injustice had been done. Congress passed a law granting Robles
an amnesty, but, at the same time, it passed another law preventing prosecution
of the military tribunal that had ordered Robles's arrest that refused
to comply with a habeas corpus writ ordering his release.
In an attack that appeared meant either for Robles or to send him a
message, four unidentified assailants attempted on March 26, 1997 to abduct
Jaime Robles Montoya, the general's twenty-six-year-old son, who was driving
the general's car. Robles Montoya was able to escape only by driving against
the traffic up a one way street with his assailants in hot pursuit. After
the incident, an unidentified caller rang the Robles house and repeated
"death, death, death!" and "this time he escaped, the next time he won't!"(131)
Robles Espinoza received a new set of threatening phone calls the evening
of April 9, 1997, after he gave an interview on Channel 9 television.(132)
Since the beginning of the armed conflict, Peru's two armed opposition
groups, Shining Path and the MRTA, have consistently violated principles
of international humanitarian law.(133)
Such violations include the selective killing of non-combatants, indiscriminate
attacks, forced recruitment, and, in the case of the MRTA, hostage-taking.(134)
Shining Path, in particular, has gained a reputation for its glorification
of violence, making a revolutionary virtue out of the cold-blooded assassination
of noncombatants perceived to be its ideological enemies. Shining path
has explicitly rejected respect for the principles of human rights, a stance
that is amply displayed in the group's disregard for the laws of war:
We start from the position that we do not subscribe either to the Universal
Declaration of Human Rights or the Costa Rica Declaration [the American
Convention on Human Rights]. . . [Shining Path's] position is quite clear.
We reject and condemn human rights because they are reactionary, counter-revolutionary,
bourgeois rights: they are presently the weapon of revisionists and imperialists,
principally of yankee imperialism.(135)
Rather than concentrate its attacks on the armed forces or police, Shining Path has predominantly singled out civilians. Attacks on local government officials have been carried out systematically, with the evident intent of undermining the presence of the state in the areas under the organization's influen