The determination of the unlawful act was made
by officers of the DINCOTE police, and used as
a basis to determine the competent court;
2.24 (f) of the Constitution of Peru. Moreover, the
legislation applied to her did not permit the judge to
order the appearance of the detainee. Contrary to
article 9, paragraph 3, of the Covenant, detention in
custody was the general rule, with no exceptions.
Furthermore, article 6 of Decree-Law No. 25659,
which restricted the possibility of filing a remedy of
habeas corpus in respect of persons under
investigation for the offence of terrorism, was
applied to her. This was a violation of article 9,
paragraph 4, of the Covenant.
The appointment of defence counsel was
regularly made after the police investigation had
taken place;
Counsel freely elected by the defendant could not
have an interview with the defendant before the
latter made a statement to the examining
magistrate;
Neither defendants nor their counsel were shown
the evidence against them. Nor was the defence
permitted to challenge witnesses who had made
statements during the police investigation;
3.4 According to the author, the regime of
deprivation of liberty applied to her on the basis of
Decree-Law No. 25475 was inhumane and thus a
violation of article 10 of the Covenant. It excluded,
inter alia, the possibility of taking advantage of the
benefits set out in the Criminal Code and the Code
of Criminal Enforcement. It furthermore provided
that it was mandatory for the sentence to be served
in a maximum security prison with continuous
solitary confinement during the first year of
detention and imposed severe restrictions on the
system of visits.
Defendants had no access to any right of
conditional release before the conclusion of
proceedings;
A special ad hoc procedure was established and
applied by a judge during the investigation phase
and by faceless judges during the oral hearing,
whereby procedural guarantees were not
admitted;
3.5 The author further asserts that article 14,
paragraph 1, was violated since she was tried by
faceless courts, where the identity of the judges is
kept secret and objection is impossible. The DecreeLaw also lays down that both pretrial proceedings
for the offence of terrorism and the oral hearing must
be conducted in specially designed premises within
the criminal courts. According to the author, the
secret nature of the oral hearing distorts it since its
public nature is its fundamental characteristic and a
guarantee of fairness.
Charge and evidence statements, records of
hearings and judgements lacked the signature of
the prosecutors and judges involved because of
their faceless status;
During the first year of imprisonment, a regime
of continuous solitary confinement was imposed
on the accused, in addition to other restrictions.
2.11 The author declares that she has not made
application to any other international body with
regard to the subject matter of the communication.
3.6 Article 14, paragraph 2, was also violated,
since Decree-Law No. 25475 eliminated the
independence of the judge and of the Public
Prosecutor’s Office.1 The judge was unable to take a
decision on the basis of the evidence submitted as to
whether or not there were grounds for initiating the
pretrial investigation: rather, the Decree “orders” the
judge to initiate the investigation and issue an arrest
warrant. Detention is compulsory; the judge no
The complaint
3.1 The author claims that the facts described are
a violation of several provisions of the Covenant.
3.2 As the author asserted in her testimony before
the Criminal Court on 10 March 1993, she was
subjected to physical and mental torture during her
detention by DINCOTE; she was also left without
food and kept in solitary confinement for seven days.
All the interrogations were accompanied by blows to
the head, insults, threats and psychological pressure.
The solitary confinement was permitted under article
12 (d) of Decree-Law No. 25475 and was absolute,
even counsel being excluded. This constitutes a form
of cruel and inhuman treatment damaging to an
individual’s physical, mental and moral well-being.
According to the author, these facts are a violation of
article 7 of the Covenant.
1
Article 13: “For the investigation and trial of the terrorist
offences referred to in this Decree-Law the following rules
shall be observed: (a) Once the charge has been
formalized by the Public Prosecutor’s Office, the
detainees shall be brought before the criminal judge,
who shall give the order to commence investigation with
an arrest warrant within a period of 24 hours, after the
necessary security measures have been taken. During the
investigation no form of release may be envisaged; there
shall be no exceptions. (…) (d) On conclusion of the
investigation, the file shall be transmitted to the President
of the court in question, who shall transmit the
proceedings to the chief prosecutor, who in turn shall
appoint the senior prosecutor who must draw up the
indictment within three days, being liable for failure to do
so.”
3.3 Article 9, paragraph 1, was also violated,
since the author was detained arbitrarily, without a
court order and without having been caught in
flagrante delicto, these being requirements of article
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