E/CN.4/1999/63/Add.2
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only a technical issue, but also a political one, and, in order to achieve its
objective, it cannot overlook international human rights standards and the
general principles of such important matters as the independence of judges.
The process began under a cloak of suspicion because it was the result of the
suspension of the Constitution and the subsequent replacement of a large
number of judges. Many later events unfortunately clouded the transparency
that a process of this kind requires.
169. The independence of judges means that they have to be appointed on a
non-discriminatory basis, without political and other influences; that they
must have tenure; and that promotions must be objective. The process which
began in 1992 has not been based on these criteria.
170. The situation of military justice is particularly serious. The Working
Group is of the opinion that this sector, in Peru as in many other countries,
does not meet the requirements of General Comment No. 13 adopted by the Human
Rights Committee to guarantee due process of law.
171. Many Peruvian criminal laws are so vague in their characterization of
acts regarded as criminal that the principle of nullum crimen sine lege is
being seriously undermined.
172. With regard to arbitrary detentions, the Working Group is of the opinion
that the lack of independence of judges and prosecutors, especially military
ones, the changes to the rules of due process and the inappropriate
description of criminal acts have led to a number of “innocent prisoners”,
i.e. persons arbitrarily deprived of their liberty, according to Commission on
Human Rights resolutions 1991/42 and 1997/50 and its own methods of work.
This conclusion is shared by the Special Rapporteur on the independence of
judges and lawyers, the Human Rights Committee, the Inter-American Commission
on Human Rights, the Inter-American Court of Human Rights, national and
international lawyers and a large number of national and international
non-governmental organizations.
173. The Working Group takes notes with satisfaction of the tremendous
strides that have been made in the last few years, including the right of an
accused person to legal counsel from the moment he is arrested; the
reinstatement, albeit restricted, of the right to habeas corpus; the repeal of
laws on the criminal responsibility of minors under 18 years of age; the
recognition of the right to counsel of one’s own choosing and the right of
defence lawyers to defend more than one person at a time; less frequent use of
torture and enforced disappearances; and the end of “faceless justice”. The
Working Group is pleased with this progress and encourages it, despite some
unjustified regressive steps, such as the May and June 1998 laws and the
sentencing of lawyers who defended persons charged with terrorist crimes.
174. The Working Group would like to pay special tribute to two institutions.
The first is the Office of the Ombudsman, which has fully exercised the
independence conferred on it by the Constitution to become the most credible
and respected institution in the country. The second is the Committee on
Pardons, which has already pardoned 418 persons with the President's full
support.
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