longer has the discretion to order a conditional
release. With regard to the Public Prosecutor’s
Office, the Decree requires the senior prosecutor to
issue a charge and evidence statement when the
pretrial investigation is concluded, with the
consequent disappearance of any discretion in
proceeding. Overall, this represents a violation of the
right to be presumed innocent.
The State party’s observations on admissibility
4.1 In its observations of 22 December 20042 the
State party reports that in January 2003 the
Constitutional Court handed down a judgement in
which it declared various procedural and criminal
rules in anti-terrorist matters to be unconstitutional.
As a result, the Government issued Legislative
Decree No. 926 in February 2003 standardizing the
annulment of proceedings for the offence of
terrorism conducted before judges and prosecutors
whose identity was concealed and where the
prohibition of objection applied. It also issued
Legislative Decree No. 922, according to which
criminal proceedings for the offence of terrorism are
to be conducted in accordance with the ordinary
procedural arrangements of the Code of Criminal
Procedure.
3.7 According to the author, there was a violation
of article 14, paragraph 3, since as the police report
attests, the author was not clearly notified in detail of
the reason for her detention. She was furthermore
unable to communicate with her counsel during the
time she remained in solitary confinement, since
article 12 (f) of the Decree-Law established that the
defence lawyer could only intervene as from when
the detainee made his statement before the Public
Prosecutor. Article 13 of the Decree-Law also
eliminated a fundamental defence mechanism by
preventing individuals involved in the investigation
from being called to testify as witnesses before a
judge or court. The author’s conviction was based
exclusively on the police report, which means that
the Public Prosecutor’s Office did not prove the
accusations; instead, the burden of proof was on the
author.
4.2 On 15 January 2003, the High Court of Lima
issued a decision concerning the remedy of habeas
corpus filed by the author against the Special
Criminal Division of the High Court of Lima and the
Supreme Court for violation of her personal liberty
as a result of a breach of due process. The remedy
was declared admissible and the criminal trial of the
author consequently void since the fundamental
principles of due process—a competent and
established judge and the right to know whether the
trial judge had jurisdiction—had been violated and
since she had been sentenced by faceless judges. On
3 February 2003 the National Terrorism Division
issued a writ ordering this decision to be
implemented.
3.8 The facts on which the detention and
subsequent trial and sentencing of the author were
based supposedly took place between 1987 and the
early months of 1992. The complaint by the Public
Prosecutor’s Office, the initiation of proceedings and
the subsequent sentence were, however, based on
Decree-Law No. 25475, promulgated on 5 May
1992, which imposed heavier penalties. This is a
violation of article 15 of the Covenant.
4.3 On 27 March 2003, the First Special Court for
terrorist offences instituted pretrial proceedings
against the author for the offence of ordinary
terrorism as provided in article 288-A and article
288-B, paragraph (a), of the 1924 Criminal Code,
introduced by Act No. 24651; articles 319 and 320,
paragraph 1, of the 1991 Criminal Code; and articles
2 and 5 of Decree-Law No. 25475, and issued a
detention order. The proceedings were assigned to
the National Terrorism Division and referred to the
Office of the Second Senior Prosecutor specializing
in terrorist offences. In a decision of 6 September
2004 the Prosecutor entered a charge of terrorism.
The author was charged with belonging to a
subversive organization, the Sendero Luminoso
Communist Party of Peru, and with being a member
of the cell management committee of the health
section of the department of support of the People’s
Aid Association and therefore in charge of groups
belonging to the organization. As a surgeon, she was
3.9 Article 15 was also violated by the fact that
the author was sentenced for acts and offences other
than those for which the criminal investigation was
initiated. The Fourteenth Specialized Criminal Court
of Lima opened an investigation for an alleged
offence against the public peace/terrorism, as
“collaboration”, under article 4 (b) of the DecreeLaw. As set out in the order to commence
investigation, the alleged acts of collaboration
consisted of surgical operations and the provision of
surgical instruments, medical equipment, medicine,
X-rays and clinical analyses to the “terrorist” group.
She was, however, sentenced for being a “middle
level cadre” of Sendero Luminoso. The medical acts
described were further criminalized as collaboration,
although none of them is described as collaboration
in article 321 of the Criminal Code, one of the
applicable standards in force.
3.10 Lastly, the author maintains that any violation
of any of the rights enshrined in the Covenant entails
the violation of the State’s obligation to respect
those rights, embodied in article 2, paragraph 1.
2
The communication was transmitted to the State party on
14 October 2002. The State party had six months, i.e.,
until 14 April 2003, to give its reply on admissibility and
merits. When no reply was received, reminders were sent
on 15 September and 18 November 2004.
105
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