E/CN.4/1999/63/Add.2
page 9
unconstitutionality actions. A limited number of persons are entitled to
bring such actions (the President of the Republic, the Attorney-General of the
Nation, the Ombudsman, 25 per cent of members of Congress, 5,000 citizens, the
Presidents of Regions and vocational associations in their own areas of
specialization). According to the Court's regulatory act, the
unconstitutionality of laws must be approved by six of the Court's seven
members (86 per cent).
38.
The Court's credibility in the eyes of the public and particularly in
the eyes of the legal community has been weakened by the dismissal of three of
its judges, who considered an interpretative provision of the Constitution
with obvious political content to be unconstitutional.
E.
National Council of the Judiciary
39.
The 1993 Constitution increases the powers of the National Council of
the Judiciary, which it declares to be autonomous. The Council is responsible
for selecting and appointing, with the approval of two thirds of its members,
judges and prosecutors at all levels, except when they are elected by the
people (justices of the peace). The Council is required to confirm judges and
prosecutors every seven years. The Council is composed largely of members of
the legal community (Supreme Court, Board of Senior Prosecutors, bar
associations), but also of other social sectors, including the rectors of
private and national universities, other vocational associations and, if the
Council so decides, business and labour.
40.
At present, it does not exercise its basic function: alternate or
provisional officials are appointed only in the form described, without the
participation of the National Council of the Judiciary, which can also not
dismiss Supreme Court judges at present.
III.
A.
ANTI-TERRORIST LEGISLATION
Penal measures to combat terrorism
41.
Since March 1981 (Legislative Decree No. 046), a large number of
anti-terrorist laws have been promulgated (Act Nos. 24.651 and 24.700 of 1987,
24.953 of 1988 and 25.031 of 1989), while the new Penal Code (Legislative
Decree No. 635) of 1991 contains new provisions on terrorism. The laws have
all increased the powers of the police and reduced the supervisory role of
judges. They were repealed in 1992, but then replaced by more stringent
measures.
1.
The new definition of the offence of terrorism
42.
Decree-Law No. 25.475 of 6 May 1992 was the first law promulgated by
President Fujimori to fight terrorism after he dissolved Parliament.
Article 2 provides for prison sentences of 20 years to life for various acts
described generically as “terrorism”. Under the law, a terrorist is a person
who provokes or maintains a state of terror among the population or part of
the population, commits acts against life, physical integrity, health, freedom
and security of person or against property, against the security of public
buildings, roads or means of communication or any other goods or services, by