The Honorable Janet Reno
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Ave., N.W., Room 4545
Washington, D.C. 20530-0001
Dear Madame Attorney General:
Human Rights Watch is deeply concerned that your presence in early March at the Lima, Peru, conference of the hemisphere's justice ministers will send the wrong message to the Peruvian government. Peru is an unfortunate location for such a gathering. No government in the region -- with the exception of Cuba -- has more seriously interfered with the independence of the judiciary. Your presence, however, will provide President Alberto Fujimori with undeserved prestige unless you take the opportunity to forcefully advocate the restoration of judicial independence there.
In Peru today, some three quarters of the country's judges and prosecutors serve on provisional status, lacking the fundamental independence that would protect the courts from governmental interference. In its 1999 Country Reports on Human Rights Practices, released today, the State Department concluded "...the judicial system is inefficient, often corrupt, and has appeared to be easily manipulated by the executive branch."
In addition, the Fujimori government has kneecapped those institutions created by Peru's 1993 Constitution to protect constitutional rights and judicial independence. The Constitutional Court has been sidelined by the removal of judges who ruled against Fujimori's interests; the National Council of Magistrates, the constitutional vehicle for judicial oversight charged with approving tenure for judges and prosecutors, has ceased to function after its members resigned en masse to protest executive branch interference; and the official human rights ombudsman's views have been consistently disregarded. So serious has the assault on judicial independence been that the World Bank in 1998 canceled a $22.5 million loan to assist with judicial reform.
Even after President Fujimori rewrote the constitutional rules regarding the judiciary in 1992, his government has continued to interfere with what little independence the courts still exercise. This interference has produced serious human rights violations, such as massive due process violations in criminal trials and the hounding of independent journalists, such as the naturalized Peruvian media broadcaster Baruch Ivcher, who has been stripped of his nationality and television station and tried in absentia in reprisal for investigative reporting.
For your information, we have attached a concise appraisal of serious human rights-related problems with Peru's judiciary.
We urge you to express to the highest levels of the Peruvian government the concern of the Clinton administration over governmental interference with judicial independence, intimidation and manipulation of judges, the persecution of independent journalists such as Baruch Ivcher, and the near-complete abandonment of due process rights in certain kinds of criminal trials in Peru.
José Miguel Vivanco
Americas Division, Human Rights Watch
c.c.: Mr. Harold Koh, Bureau of Democracy, Human Rights and Labor
Amb. Peter Romero, Acting Assistant Secretary of State for Inter-American Affairs, Principal Deputy Assistant Secretary
Mr. Eric Schwartz, Senior Director for Dem. H. R., & Humanitarian Affairs
Amb. Dennis Jett, United States Ambassador for Peru
Human Rights Problems with Peru's Judiciary
Erosion of judicial independence
Seven years ago, on April 5, 1992, Peruvian President Alberto Fujimori closed down Peru's congress and courts, allowing them to resume operation only after their loyalty to his government had been all-but assured. The courts were massively purged of judges and prosecutors deemed insufficiently supportive of the government. The president now counts on a pliant congressional majority, made up in the main of the governing party Change 90 - New Majority (Cambio 90 - Nueva Mayoría, C90-NM), and a close relationship with key military leaders. Behind the scenes, he relies on a secret political intelligence apparatus, the National Intelligence Service (Servicio de Inteligencia Nacional, SIN) whose de facto head, Vladimiro Montesinos, is a close advisor. More than 70 percent of Peru's judges are provisional appointees without tenure. Appointment and dismissal of provisional judges are notoriously subject to political influence by the executive branch.
After its reconstitution, the new Congress rewrote Peru's Constitution to allow the president to run for a second term in office. Subsequently, Fujimori announced his intention to seek a third term in the year 2000. This aroused widespread opposition and was interpreted by many as a violation of the new Constitution. In May 1997 Fujimori's supporters in Congress impeached and dismissed three members of the Constitutional Court for finding a law enabling Fujimori to stand for a third term inapplicable under the Constitution. The court has been unable to carry out its constitutional functions since this congressional action. In November 1998 the Inter-American Commission on Human Rights condemned the dismissal of the three judges, and pledged to submit their case to the Inter-American Court of Human Rights if Peru does not reinstate them (See Organization of American States: Lima, Interamerican Commission on Human Rights, "Press release no. 20/98," November 13, 1998,).
Another key institution under governmental assault is the National Magistrates Council (Consejo Nacional de Magistrados, CNM), an autonomous body mandated under the 1993 Constitution to select and appoint judges and state prosecutors at all levels. The CNM's principle function is to foster a professional judiciary and protect the courts from political interference. It has powers to dismiss Supreme Court justices and prosecutors found to have committed infractions. Yet the Fujimori government has created a parallel agency, the Executive Commission of the Judiciary, headed by a government appointee and charged with the reorganization of the judiciary, which has increasingly taken over the CNM's functions.
Fujimori's efforts to influence judicial bodies are widely seen as an integral part of his re-election strategy. After political tampering with the membership and rules of the National Election Board, (Jurado Nacional de Elecciones, JNE), it ruled last August that a congressional vote was needed to authorize a referendum on the re-election issue, contradicting a previous ruling of the JNE before its composition and rules were changed. This maneuver allowed the Fujimori majority in Congress to kill the referendum initiative, frustrating in a stroke the efforts of citizens' groups that had collected the required 1.4 million signatures in support of the initiative.
In March 1998 all seven of the CNM's members resigned to protest a new law that gave the Executive Commission of the Judiciary sole authority to investigate complaints against Supreme Court justices and fire judges responsible for irregularities or abuse, powers reserved in the Constitution for the CNM. This law ensures that accusations against judges who enjoyed government support would not reach the independent CNM, but instead, be handled by the pro-Fujimori commission. The law was passed on the same day as the publication of a CNM ruling opening an investigation into the conduct of six justices who were alleged to have signed a forged ruling ordering the Central Reserve Bank to pay a $40 million compensation claim to a private corporation.
Meanwhile, the powers of the Attorney General, whose constitutional responsibilities are to "safeguard the independence of the courts and the honest administration of justice," have been sawn away by several laws vesting many of his functions in the president of the Executive Commission of the Public Ministry, also a close Fujimori ally.
Manipulation of the courts and intimidation of judges
Repeatedly, the government has altered the composition of courts to benefit its interests or those of political allies, while judges who have ruled against those interests have been sanctioned and intimidated. Judges who have granted habeas corpus petitions in favor of people illegally detained by the police or the army or seeking judicial protection against arbitrary government action have been specially vulnerable to these reprisals. In August 1997 judge Elba Greta Minaya Calle of the 37th Criminal Court in Lima was accused of obstruction of justice and terrorism for granting a habeas corpus petition that questioned the legality of the detention of a terrorist suspect. Civilian judges Sergio Salas Villalobos, Elizabeth Roxana MacRae Thays, and Juan Cancio Castillo Vásquez of the Lima Superior Courts Public Law Chamber, who had granted amparo petitions against military courts in several politically sensitive cases, were prosecuted by military authorities, removed from their posts in mid-1997, and later fined for negligence. The military justice authorities even tried to impeach Attorney General Miguel Aljovín Swayne for seeking to enforce these court rulings, openly defying his constitutional authority. (See Human Rights Watch, "Torture and Political Persecution in Peru," A Human Rights Watch/Americas Division Short Report, vol. 9, no. 4(B), December 1997 for a fuller description of these cases.)
The Ivcher case
Interference in the judiciary is best exemplified in the case of media proprietor Baruch Ivcher. Ivcher, who was born in Israel, was stripped of his acquired Peruvian nationality, deprived of his majority shareholding in Frecuencia Latina, the nation's leading television channel, and subsequently prosecuted -- together with members of his family -- on trumped-up tax evasion charges.
During 1997 Frecuencia Latina's Contrapunto program had broadcast evidence of serious human rights violations by the intelligence services, including torture by army intelligence and systematic wire-tapping of prominent government opponents. Within hours of transmission of the phone-tapping story, an Immigration and Naturalization Department official signed an order stripping Ivcher of the Peruvian citizenship he had acquired in 1984, evidently to provide a legal pretext for depriving him of his majority holding in the television channel, since ownership of a station is barred to non-Peruvians. Although Ivcher's 54 percent holding in the company was held jointly with his wife, whose Peruvian citizenship was not affected, the shares were "temporarily" awarded to the minority shareholders who have close ties with the Fujimori government. The Supreme Council of Military Justice ordered Ivcher's arrest, ostensibly to force him to testify in an army investigation. Fearing for his safety, Ivcher fled Peru.
As the Ivcher family has struggled to recover his nationality and their shares in the company, they have faced a barrage of new bogus legal accusations. Ivcher has been convicted in absentia on customs charges, and orders for his arrest dispatched to Interpol. His wife and daughter have been declared fugitives from justice.
The persecution of Ivcher and his family has sparked widespread international condemnation. In December 1998 the Inter-American Commission on Human Rights and the Special Rapporteur of the Organization of American States on Freedom of Expression, Santiago Cantón, both called on the Peruvian government to withdraw its request to Interpol for their capture and to cease persecuting them. In the United States, Sen. Jesse Helms, chair of the Senate Foreign Relations Committee, and Rep. Benjamin Gilman, chair of the House of Representatives International Relations Committee, expressed concern on June 17, 1998, in a letter to President Fujimori. Having received no response, they wrote him again in October. Also that month, Rep. Gilman introduced a motion to the House (Resolution 609) concluding that "the erosion of the independence and the judicial branches of the Government of Peru and the blatant intimidation of journalists in Peru are matters of concern for the United States." In Lima, Ambassador Dennis Jett has made several forthright public statements on the case.
It is widely believed in Peru that Fujimori's adviser Vladimiro Montesinos, de facto head of the National Intelligence Service (SIN) is behind this remorseless persecution of Ivcher and his family. Montesinos, who very rarely appears in public, has not rebutted these accusations. There is growing evidence that the SIN concocted these fraud charges and influenced the outcome of trials. The temporary status of most of Peru's judges makes them very vulnerable to this type of pressure and interference, which is all the more pernicious because it is hidden from the public.
The Ivcher affair is by no means isolated. Other prominent figures who have suffered similar legal harassment include Judge Delia Revoredo Marsano and her husband Jaime Mur. Justice Revoredo was one of the Constitutional Court judges dismissed in 1997, and later Dean of the Lima Bar Association. Following her election as dean, the association had requested that the National Magistrates Council investigate the conduct of several Supreme Court judges, one of the factors that apparently prompted the passage of the law limiting the CNM's disciplinary powers. Revoredo and her husband were also prosecuted and ordered arrested on customs charges for which they had previously been acquitted. After receiving death threats they left Peru in April 1998.
Judicial independence and due process in criminal trials
Although Peru's notorious "faceless courts" have been practically dismantled, many of their worst features were reimposed for trials of members of violent crime gangs after the Congress briefly allowed Fujimori decree-making powers in early 1998. The measures introduced to combat violent crime restore some of the most abusive features of the defunct faceless courts, including the reliance on summary proceedings in military courts to try civilians. Organized crime suspects, including minors between the ages of sixteen and eighteen, are now tried by military courts and face a minimum 25-year prison sentence. For adults, life-imprisonment is mandatory. Habeas corpus writs against illegal arrest or ill-treatment under this law must be presented to military courts, giving no guarantee of a fair hearing. The protection of suspects from torture is seriously jeopardized by a separate decree that prevents courts from questioning police officers responsible for the interrogation. Implicit in this new system is the notion that those accused of serious crimes do not have the right to the same basic guarantees as the rest of the population and that convictions must be obtained regardless of the cost in terms of human rights.
Even while the Fujimori government refuses to allow judicial independence, your presence at the justice ministers' summit will provide authorities a golden opportunity to advertise United States approval for its handling of judicial affairs. It is vital that you-as the highest level political representative of United States law enforcement-correct that mistaken impression with clear public statements as well as private representations. To remain silent would inevitably promote the view that the Clinton Administration is a silent partner in the Fujimori government's suppression of one of the most vital elements of democracy: the independence of the judiciary.