Freedom of Expression
4 - Chapter III – Evaluation of the Freedom of Expression in the Hemisphere
This report is being presented just shortly after the position of the Special Rapporteur for Freedom of Expression was created. Thus, the Rapporteur will limit himself to a few initial concerns regarding freedom of expression in the hemisphere, based on preliminary observations and information received to the present time. Mention will also be made of countries that have given us cause for special concern regarding the state of freedom of expression. There are also certain areas in which threats to freedom of expression are especially noteworthy: the murder of journalists, contempt legislation and compulsory membership in a professional association.
In general terms it is possible to say that with democratic elections in 34 over 35 States of the hemisphere, the recognition and protection of freedom of expression has improved greatly in comparison to previous decades, when dictatorial or authoritarian regimes were in and of themselves a clear restriction to freedom of expression.
Nevertheless, in several countries freedom of expression is still endangered. Many States have not yet created a climate that fosters the full and effective recognition and development of this right. A variety of factors come into play depending on the circumstances in each country. Among others, we can mention the murder of journalists and the ongoing, daily threats that hang over the media in general and over journalists in particular, the determination of some governments to silence critics through the use of various forms of harassment, the continued existence and enforcement of laws contrary to the American Convention and other international instruments safeguarding freedom of expression, and the use of prior censorship and the existence of censorship bodies.
The murder of journalists is an extremely grave threat to the exercise of freedom of expression and the most direct way of attacking this fundamental right. In 1998 eighteen journalists were killed: Brazil (2), Canada (1), Colombia (9), Mexico (4) and Peru (2).[1] In some cases it has not been possible to establish with certainty whether the motive of the crime was the professional activity of the journalist in question. Nonetheless, in all of these cases, organizations working to safeguard freedom of expression believe that there is sufficient cause to suspect that the motive behind each killing may indeed have been work being carried out by the journalist.
Intimidation of journalists through verbal or written threats and actual attacks against them or their properties are frequently used in our region in an attempt to limit freedom of expression. The Special Rapporteur has already received a great number of communications reporting on acts of intimidation, especially against investigative journalists.
The murder of journalists and threats against them do not exactly create a climate favorable to the development of freedom of expression. Violence is being used to silence the “primary and principal manifestation” of the right of freedom of expression.
The Special Rapporteur has received information to the effect that most cases of murder and threats against journalists have gone unpunished and are not investigated by law enforcement agencies with the efficacy, determination and dedication that they deserve. It should be recalled that every State has the duty to effectively investigate the facts whenever journalists are murdered or threatened, and to punish those responsible.[2]
The Special Rapporteur has also come to recognize that many of the countries of the hemisphere continue to have in place legislation that is both anachronistic and incompatible with the American Convention and other international human rights instruments. Two cases can be mentioned to illustrate the situation – Panama and Chile. Panama has a legal framework that seriously limits freedom of expression (the specific legislation violating Article 13 of the Convention is mentioned further on in this document). President Perez Balladares has more than once said that he intends to change the law, but until now nothing has been done.
In Chile there are laws on the books with provisions that clearly limit freedom of expression. Articles 263 and 264 of the Penal Code, article 284 of the Military Code of Justice and Article 6 (b) of the State Security Law are prime examples. The last of these provides for the punishment of those who “defame, slander or libel” high level authorities such as the President, ministers, members of Parliament, members of superior courts, chiefs of staff of the armed forces, etc. In this regard, various Chilean officials have used this provision against people who have been critical of them.[3] For example, on April 13, 1999, the Appellate Court of Santiago in application the act on security of the state banned “El Libro Negro de la Justicia Chilena” (The Black Book of Chilean Justice), written by the journalist Alejandra Matus on the basis of a request by Servando Jordan, member of the Supreme Court and former President of that body. Members of the civil police seized all copies from the offices of Editorial Planeta. They also seized copies from bookshops in the country.
It has also come to the attention of the Special Rapporteur that intimidation of journalists and the media occurs through the preparation and presentation before legislative bodies of bills that would clearly threaten freedom of expression. In Peru, for example, a bill has been introduced that, if it becomes law, would require journalists to reveal their sources.
Last June in Argentina, the Executive introduced a bill before Congress that would provide incarceration for anyone who films or records confidential records of government employees without their consent and reproduces them in the media. The bill would sanction the press by punishing “(anyone who), to uncover secrets or invade the privacy of another person, records or reproduces sounds or images without his consent.” If this bill were to become law, it would forbid the use of hidden recorders and cameras, which have proven so useful in recent years to uncover acts of corruption committed by government and private-sector employees. Currently, the bill has been approved by one (the Senate) of the two houses of Congress.
The Office of the Special Rapporteur is especially worried by attempts to use the courts to limit freedom of expression, especially that of journalists who are critical of the authorities. At times charges are made against journalist based on legislation that clearly violates of Article 13 of the American Convention on Human Rights. This is especially true of charges of contempt, as we shall see later on.
The courts are also used as a means of intimidation. Journalists are imprisoned or fined, made to appear before the court on a regular basis, and forced to spend money to defend themselves. This seriously affects the practice of their profession. When such means are brought to bear against journalists who are critical of the government, the courts become an instrument for the limitation of freedom of expression rather than a channel for resolving the conflicting interests of the authorities and the journalist. In Panama, for example, many lawsuits against journalists have been initiated by government employees.
Also worrisome are court decisions restricting freedom of expression. Certain decisions handed down by some courts in the region are clearly out of line with the provisions of the American Convention and international jurisprudence. In Chile, for example, the Supreme Court banned the screening of the film “The Last Temptation of Christ”. In Argentina there has been an alarming increase in the number of Supreme Court decisions restricting freedom of expression (11 in the last year alone) and most of them involve senior governmental authorities in some regard.
The Special Rapporteur is also concerned by the continuing existence of censorship bodies in some countries, which restrict, and in effect put a straitjacket on freedom of expression. The Constitution of Chile, for example, stipulates that, “The law shall establish a system of censorship for the exhibition and publicity of cinematography productions”. The Rapporteur has become aware that the Chilean Government has tried to modify its Political Constitution in respect to censure of the exhibition and publicity of cinematography productions. On April 14, 1997, the Executive presented to the National Congress a plan to reform the Constitution article 19, number 12, final subparagraph. This bill has the purpose of eliminating and substituting it by a system of film rating. This bill is still under study by Congress.
Another mechanism sometimes used to control freedom of expression is the use of public funds to favor some media and prejudice others. In Nicaragua, for example, the State Revenue Office (Dirección de Ingresos) and the Customs Office recently stopped placing announcements in the daily “La Prensa”, while continuing to run them in other media. The application of different standards to “La Prensa” and the rest of the media indicates that there is an intention to harm the former.
Official announcements are often a significant source of income for the media. State bodies must establish clear, objective and fair criteria on how such official announcements will be distributed. Such announcements should never by used to damage some media and favor others.
Lastly, one of the most serious concerns the Office of the Special Rapporteur has is in regard to journalists being investigated by intelligence services and other state agencies. The Special Rapporteur has been given access to documents, allegedly belonging to the Peruvian intelligence services, that describe in great detail a plan to undertake in-depth investigation of journalists critical of the government, and especially of those critical of the Armed Forces and Intelligence Services. More information on this will be provided later in this report. In Argentina, four Air Force officers were condemned in December 1998 for spying on 10 journalists at a time when the press was critical of the safety levels of airports and airport privatization.
The Special Rapporteur notes that the Chapultepec Declaration is receiving growing recognition among all social sectors of our hemisphere and is becoming a major point of reference in the area of freedom of expression.[4]
In this first report, the Special Rapporteur would like to express special concern for the status of freedom of expression in Panama and Peru. Mention will also be made of the situation in Cuba.
Currently Panama has a set of anachronistic laws on freedom of expression. Rather than acting as an effective guarantee of rights, these laws have become a frequently used tool in the hands of government employees who wish to silence criticism, thereby restricting freedom of expression and endangering public debate.
This use of outdated laws by government employees has created a situation of non-stop harassment and has placed a virtual siege on journalists and the press in general. Since journalists often carry out their duties in sectors of society that may impinge on the functions of some government employees, journalists now find the threat of court action hanging over them constantly.
The main pillars of this outdated legal framework in Panama are Cabinet Decree 251 of 1969 on censorship; Chapters I and II of Title III of the Criminal Code (Articles 172-180) on “crimes against honor” (delitos contra el honor); and Laws 11, 67 and 68 of 1978 on the media and journalism, commonly referred to as the “gag laws”. To this triumvirate should be added provisions on contempt derived from the Political Constitution and Article 307 of the Criminal Code, and which those who work in the Judiciary, the Public Prosecutor’s Office and the Electoral Tribunal often use to silence their critics.
The Rapporteur has received numerous petitions regarding charges filed by Panama Stateofficials against journalists, revealing the intent to silence criticism against the Government through judicial pressure. The ombudsman, Dr. Italo Isaac Antinory Bolanos, together with a number of independent journalists, expressed their concern to the Rapporteur for the judicial persecution by prosecutor Jose Antonio Sossa against journalists and other personalities. The ombudsman himself has been threatened with charges after making public his opposition to the use of phone tapping by prosecuting authorities. Some of the information received reveals that:
1. On 28 February 1998, three officers of the Technical Judicial Police raided Diario La Prensa in Panama City and tried to detain investigative reporter Herasto Reyes on charges of slander and libel of the President of the Republic. The journalists in the premises of Diario La Prensa at the time surrounded Mr. Reyes and prevented him from being arrested. This judicial action stemmed from an article for which Mr. Reyes had interviewed José Renán Esquivel, former director of the Social Security Savings Fund (Caja de Seguro Social). The journalist quoted Mr. Renán as saying that in 1982 His Excellency, then Finance Minister was involved in a financial scandal related to a CSC housing project.
2. In regard to the Office of the Public Prosecutor, when accusations proliferated about the inflow of illegal funds during the 1994 electoral campaign and the peddling of influence in the allocation of public assets, the two public prosecutors who manage the Office, José Antonio Sossa and Alma Montenegro de Fletcher, decided to bring charges against the journalists who made the accusations public, Gustavo Gorriti and Rolando Rodriguez in the first case and Marcelino Rodriguez, Michelle Lescure and Brittmarie Janson Pérez in the second.
3. In February 1998 José Luis Sosa, Director of the National Police, brought a libel and slander suit against Miguel Antonio Bernal, journalist, lawyer and a candidate to the Mayor’s Office of the Capital District. On the television news program “TVN-Noticias”, Mr. Bernal had said that the National Police was responsible for the death of four prisoners who were decapitated by other inmates of the Coiba Island prison colony.
4. In March of 1999, the Electoral Tribunal determined that Editorial Panama America SA, EPASA, violated Article 177 of the Electoral Code and was liable to pay ten thousand Balboas. Article 177 provides that “political surveys must be registered with the Electoral Tribunal before being published.” The company in charge of the survey had presented the information by fax. The Tribunal decided to reject that presentation and demanded that it be submitted by hand. The Rapporteur considers that the requirement of prior registry of the surveys imposed by the Electoral Tribunal could be considered prior censorship.
In relation to this subject, the Special Rapporteur wishes to emphasize that the legal definition of and protection against libel and slander does not in itself constitute a violation of the right to freedom of expression. The violation occurs when such legal figures are joined to other norms to forge a weapon wielded constantly by people in the public employ to impede open and transparent discussion. The result is an environment of overriding threat to the free enjoyment of freedom of expression, especially when journalists, the “prime manifestation” of the right to freedom of expression, are being constantly harassed with lawsuits.
It is imperative that all Panamanian legislation regarding the press be reviewed and brought into line with the provisions of Article 13 of the Convention.
In Peru, limitations on the independence of the Judiciary have bred a climate of legal insecurity in regard to the practice of journalism. A wave of death threats and a systematic campaign of persecution and personal attack against journalists critical of the government have exacerbated the situation.
During its visit to Peru, the Inter-American Commission of Human Rights announced in a press release that “the Commission received, however, various complaints from journalists – and especially from those engaging in investigative journalism – reporting that they often are subjected to threats and various kinds of harassment”.[5] The Special Rapporteur accompanied the Commission on the on-site visit, and also issued a press release at the close of the visits. In it, he said that, “The death threats that many journalists have received for the practice of their professions are our main concern. Given that approximately 150 journalists have been killed in our hemisphere in recent years, any threat on the life of a journalist must be fully investigated. Moreover, the government has the responsibility of finding means to ensure that the profession can be practiced without consequences that endanger the physical well-being of those who practice it.”[6]
The Special Rapporteur also received information on indirect means of bringing pressure to bear with the objective of limiting freedom of expression, including court cases, attacks on one’s professional reputation and workplace persecution.
The Rapporteur had access to documentation allegedly belonging to the Peruvian Intelligence Service. These documents suggest that there could be an intention to restrain freedom of expression by harassing journalists. According to these documents, a group of journalists should be investigated with the purpose of obtaining evidence that by revealing intelligence activities through their profession, they are involved in illegal activities against the government or the army. The documents also note that these journalists carry out investigations on sensitive intelligence areas for the government and the army, such as torture, murder between members of the Armed Forces, special tasks by the SIN and SIE (intelligence services), and phone tapping. The journalists mentioned in the documents are: “ Cesar Hildebrant and his investigating team; Cecilia Valenzuela and her investigating team; Lilian Zapata; Lucho Iberico; Josefina Towsend; Nicolas Lucar; Monica Chang; Beto Ortiz, special investigation team (Mr. Ivcher); Jose Arrieta (Pepe); Alejo (Gordo); Milagros (Chala); Naomi (Gorda); Karen (Flaca); Ivan; Carmen (Camucha); Javier; Jaime; personnel of the newspaper “La Republica” (oposition) and others.”
Some of the journalists listed in the documents have received death threats more than once, and one of them, José Arrieta Matos, found himself obliged to flee the country. The documents in question would indicate that certain sectors of the Peruvian government have the intention of silencing journalists who have expressed opinions critical of authorities.
The Special Rapporteur also learned of a great many individual cases regarding freedom of expression in Peru, including the following:
Angel Paez Salcedo, chief of the investigative department of the daily La Repûblica and correspondent of the Argentine daily Clarín. Claims that in early 1998, he began to receive threats on his life. According to organizations for the protection of the press, he was being threatened for his investigation of corruption in the army and clandestine operations of the Army Intelligence Service.
César Hildebrandt, anchor of the news program “En Persona”. He received several death threats. On 5 November 1998, he received a threat on his life and was labeled a “traitor to the fatherland” by an Armed Forces commanding officer. The threats he received warned him that he was being watched closely because of his report on the National Intelligence Service.[7]
José Arrieta Matos, Director of the Investigative Department of Channel 2/Frecuencia Latina. Faced with the relentless pursuit of the security forces, he sought refuge in the United States. Peruvian authorities accused Mr. Arrieta Matos of having committed an offense against the public administration. He left the country in January of 1998, and on 16 July of that year the U.S. Department of Justice granted him refuge.
Cecilia Valenzuela, director of the television program “Acá y ahora” broadcast by Andina de Televisión., indicates that she received a telephone call and anonymous letters threatening her with death in May 1998. According to organizations for the protection of the press, the cause was her investigation of cases of government corruption and human rights abuses by military personnel.[8]
The newspaper “El Comercio” also received numerous phone threats in April of last year. Press protection organizations attribute this to the publication of an interview with a former police captain in which secrets from government investigations were revealed.
Johny Eduardo Pezo Tello was jailed in November of 1998 on a charge of terrorism. The cause was that he had read on his radio program a letter from MRTA (Revolutionary Movement Tupac Amaru). Mr. Pezo Tello had received a call threatening him and his family with serious consequences if he didn’t read the document over the air during his show. He tried to leave the station and report the incident to the police, but two individuals keeping watch outside warned him to do what he had been told or else. He went back to the studio, and only after apologizing to the audience and stating that he did not agree with the ideas of the MRTA, did he read the document. International condemnation of his subsequent arrest was immediate. The Special Rapporteur facilitated all relevant information to Peruvian authorities seeking a suitable solution. Finally the announcer was released.
Regarding Mr. Baruch Ivcher’s case, currently pending before the Inter-American Court on Human Rights, the Commission has found that the Peruvian State deprived Mr. Ivcher of his title of nationality in order to remove him from control of Channel 2 “Frecuencia Latina” and thus violated his freedom of expression at a moment in which such Station reported on serious human rights violations and acts of corruption.
Cuba must be discussed separately from the other countries of the hemisphere. The absence of democracy in Cuba clearly impinges on the right to freedom of expression. Until a move toward democracy is made, significantly broadening the basic rights of all Cubans, it will be impossible to develop freedom of expression as consecrated by the American Declaration and the American Convention.
The Cuban Constitution contains a clause prohibiting any of the media, including the written press, from being privately appropriated “in order to make sure that it will be used exclusively for the working people and in the interest of society.” The government censures all foreign material attempting to enter the island, in addition to arbitrarily denying entry to foreign journalists. The Inter-American Press Association reported that over 80 foreign journalists had been denied visas to enter the country prior to the Pope’s visit to Cuba, for the reason that they had previously been critical of the country’s authorities. Thus the government uses the arbitrary granting of visas as another way of influencing and controlling the news coverage within the country.
Chapter VII of the Cuban Constitution on fundamental guarantees, duties, and rights drastically curtails the formal political rights that are essential in any democratic regime and are enshrined in Article XX of the American Declaration of the Rights and Duties of Man. Article 53 recognizes freedom of expression and press, but only “in accordance with the purposes of a socialist society.” Freedom of expression is also limited in Article 39(ch), which states that artistic freedom exists “provided that its content is not contrary to the Revolution.” The Constitution also contains the legal foundations for censorship, since it is the state that determines whether oral or written expression or art is contrary to the Revolution. The Constitution also contains the legal basis for the state to direct all activities in the area of art, culture, or the press, all of which is in contradiction with Article IV of the American Declaration.
Domestic legislation on freedom of expression contains a large number of criminal laws that repress freedom of expression it by imposing punishment in the form of prison terms. The punishment for publishing “anti-government propaganda” is imprisonment for one year. Last year, the National People’s Assembly approved the Law of National Dignity which, for the first time, punishes the act of transmitting information. Article 8 of that Law establishes that “the weight of the law will fall on all persons who, either directly or indirectly, collaborate with the information media of the enemy … with prison terms ranging from three to ten years…”.
Finally, in 1999 the “Law for Protection of National Independence and the Economy” was approved in Cuba. The objective of this law is clearly to place even further restrictions on the scant freedom of expression existing in Cuba. The supply, search, or obtaining of information and the introduction into the country of subversive material, or the reproduction or dissemination of such material, are considered crimes, as are the direct collaboration, or collaboration through third parties, with radio or television stations, newspapers, magazines, or other mass media, for the purposes indicated in the Law.”[9] The law provides for sanctions in the form of prison terms of up to 20 years for the perpetrators of such acts and for their accomplices.
To the body of law limiting freedom of expression is added the constant practice of persecution and intimidation of all persons who express opinions different from those adopted by the authorities. Recently, in March 1999, four persons were convicted on charges of sedition, for having published a manifesto entitled “The Fatherland is for Everyone” [“La Patria es de Todos”], which criticized the views of the Fifth Congress of the Cuban Communist Party (CCP). The four persons, Marta Beatriz Roque Cabello, Félix Bonne Carcasés, René Gómez Manzano, and Vladimiro Roca Antúnez, were members of the “Internal Dissidence Working Group.” Vladimiro Roca Antúnez, a former pilot in the Cuban Air Force, was given a five-year prison term. Félix Bonne Carcasé, 59 years of age, and René Gómez Manzano, a 55 year old attorney, were sentenced to four years in jail. The economist Marta Beatriz Roque Cabello, 53 years of age, was sentenced to three and a half years in jail. These four persons had been in pretrial custody since July 16, 1997.
The Rapporteur will continue monitoring the evolution of freedom of expression in the hemisphere, noting the improvements achieved as well as any deterioration and concerns.
[1] See, pages 50 to 57.
[2] See, pages 47 to 50.
[3] Those convicted under this law can be sentenced to imprisonment, demotion or exile. See Article 7 of Law 2.927.
[4] The Chapultepec Declaration, drafted by the Inter-American Press Association, contains 10 fundamental principles for the protection of freedom of expression in our hemisphere. Prominent persons are signing it in growing numbers. Numerous Heads of State and Government of the hemisphere have signed it. See Annex F.
[5] IACHR Press Release 20/98 was issued at the end of the Commissions on-site visit to Peru to examine the rule of law in the country. In it, the Commission said:
1. The Intervention of the Judiciary: Temporary Judges and Prosecutors
20. The Commission was informed that almost seven years after the government intervened in the judiciary, more than 70 percent of the country’s judges and public prosecutors are “temporary,” and that the constitutional functions of the National Magistracy Council in appointing those officials have also suffered interventions by executive commissions from both the judiciary and the Department of Public Prosecutions. This poses a grave threat to the independence and autonomy of the judiciary vis-a-vis political power, and it has in numerous cases given rise to complaints of undue interference.
21. The Commission stresses the importance of re-establishing the constitutional normalcy of the judiciary; it therefore hopes that the reorganization of the judicial sector will not take longer than the period set by law, which is due to expire in December of this year, and that the powers of the National Prosecutor will be reinstated. The National Magistracy Council must be given back its constitutional powers to appoint and remove judges and prosecutors.
22. The Commission also received information and reports from judges and public prosecutors that have been harassed, transferred, removed, or even charged with crimes after deciding on issues affecting the interests of the political sector within the Government.
23. In connection with this, the IACHR was informed that the First Civil Circuit of the Superior Court of Lima, which specializes in summary and non contentious proceedings, had accepted an injunction brought by Mrs. de Baruch Ivcher, thus allowing her to defend her right to legally intervene in the trial dealing with calls for shareholders’ general meetings. The complaint states that another circuit of the same court, acting with complete irregularity, admitted an amparo relief injunction against this judicial ruling. The complaint states that amparo injunctions are not intended to upset the effects of a judicial decision reached during normal proceedings. It also states that if actions of this kind, which are prohibited by the amparo legislation, were to be authorized, the independence of the Peruvian judiciary and the legal security of individuals would be affected even more severely and that the judges against who amparos are brought could be removed and tried in criminal proceedings for their interpretations of the law. The complaint says that this underscores once again the precarious standing of the rule of law in Peru, the questions asked about the independence and autonomy of the judiciary, and the legal certainty enjoyed by its rulings, all of which are guaranteed by the Constitution.
24. The IACHR also received a complaint regarding another amparo injunction brought against the decision of the 29th Civil Court in Lima, which would also have entitled Mrs. Ivcher to defend her rights in the trial against Frecuencia Latina regarding calls for shareholders’ general meetings.
25. These complaints cause the Commission concern; they will be studied carefully because they involve the autonomy and independence of judges, both irreplaceable guarantees of human rights.
2. The Dismantling of the Constitutional Court
26. Under the Peruvian constitutional system, the Constitutional Court is the body that controls the constitutionality of laws. This important guarantee of the constitutional rule of law has been dismantled, after the dismissal of three of its magistrates left it without the quorum needed to perform that control function.
27. The Commission made a statement on this matter in a press release issued in June 1997 during the General Assembly of the OAS held in Lima. The Commission hopes that the normal functioning of the Constitutional Court will be re-established soon and that there will be a review of certain institutional elements in the law that governs its operations, which, inter alia, requires an exaggeratedly high majority of six votes out of seven magistrates for a law to be declared unconstitutional.
3. Due Process
28. The IACHR received numerous complaints regarding Peru’s failure to observe the rules of due process enshrined in the American Convention on Human Rights.
29. These complaints involve the following: (A) The use and distortion of national security legislation to fight common crime. Perulevels charges of aggravated terrorism, under Legislative Decree No. 895, against persons who, under international treaties, are not terrorists but common criminals. This extension of terrorism to common criminality deforms and devalues terrorist actions and the need to penalize and punish them severely. The IACHR understands the gravity of the crimes committed by common criminals against personal property, individual freedom, human life, and other things of value. However, universal legal traditions demand the appropriate application of concepts that entail such important consequences as the imprescriptibility of crimes or the existence of universal jurisdiction. (B) The fact that detainees are kept incommunicado in violation of international law; the presence of questionable types of evidence (the police statement); lack of freedom during trial preparations; exaggeratedly short times allotted for trials; the absence of mechanisms for making challenges; and continuous isolation in cells (Legislative Decree No. 895). (C) The classification of qualified homicide or murder, rape of minors, kidnapping, aggravated robbery, and extortion as aggravated crimes (see Decrees No. 896 and 897). In cases of this kind, the Department of Public Prosecutions does not conduct the investigation; it only intervenes in it. In addition, the period allowed for police investigations is often extended to 15 days, in breach of the Constitution. The right of defense in these cases is undermined, in that magistrates cannot be challenged and the individuals who prepared police statements cannot be called as witnesses. (D) The unconstitutional erection of major barriers to judges’ authority in cases of habeas corpus and amparo (Legislative Decree No. 900). Under this provision, Specialized Public Law Judges have jurisdiction in these matters, whereas before the decree these important proceedings could be heard by all criminal judges in Lima and Callao. (E) The granting of competence to military justice, which can now try a new type of proceeding — military habeas corpus — in circumstances in which military judges, under international law, should only deal with breaches of the law committed in performance of those functions (Legislative Decree No. 905). (F) The adoption of provisions that negatively affect young people and violate the rules of due process, such as including adolescents over the age of 16 into the adult criminal regime (Legislative Decree No. 895). In such cases, Family Judges have no competence and adolescents are referred to military justice, which can impose punishments of more than 25 years in prison. (G) Rules for reconsidering common crimes that contain, among other elements objected to, extremely subjective and unclear descriptions that therefore offer the possibility for discretionary decisions by the authorities and false accusations and charges (see Legislative Decrees Nos. 901 and 902). (H) The distortion of functions belonging to the National Police (see Legislative Decree No. 904). This decree created the National Intelligence Directorate for Social Protection and Tranquility, allowing the National Intelligence Service (SIN) to intervene politically in the police.
30. The IACHR gives the highest importance to these complaints submitted to it that affect basic tenets of the rule of law and of the inter-American human rights protection system. The IACHR repeats that civic security is an important and basic prerequisite for democracy and for the observance of human rights. However, the essence of the rule of law is affected by the inappropriate extension of penal classifications from the struggle against subversive elements to the realm of common crime. In such cases, individuals’ basic rights and guarantees are affected, in that the assumption of innocence and the guarantees of due process are undermined. The underlying confusion in this new legislation between “national security” and “civic security” confuses the arenas to which the two belong. Mixing the two concepts into a single idea militarizes the criminal justice system and, at the same time, gives military and intelligence agencies powers which do not correspond to them, thus invading the arena of individual basic rights.
31. One of the gravest problems that affect societies as they emerge from periods of violence and terrorism is how to keep the institutions, practices, and cultural habits developed to combat subversion from becoming institutionalized and consequently from binding society to the patterns of the past. In its report on Peru, the IACHR will closely study these issues of vital importance to the democratic future of Peru and it will formulate the appropriate recommendations.
4. The Extension of Military Justice
32. The Commission received exhaustive information on the extension of military justice into civilian trials, and on its preservation as the sole system for trying members of the armed forces, even for common crimes. This situation has been upheld on many occasions by the Supreme Court of Justice, which has ruled in favor of military justice in disputes of jurisdiction. In this press release, the IACHR also refers to a series of legislative decrees that confuse the concepts of national security and civic security and which are either intended to or have the effect of unduly submitting civilians to military justice.
33. In this regard, the Commission repeats its doctrine that military justice must be applied only to active service personnel and solely for service crimes. Thus, crimes against human rights must be investigated and punished in accordance with the law by ordinary criminal courts. The distortion of jurisdictions must not be allowed because, beneath false conceptions of the efficiency of military justice, it undermines judicial guarantees and has grave institutional repercussions that challenge civil courts and the currency of the rule of law.
5. Impunity for Human Rights Crimes
34. The undue extension of military justice, the intervention suffered by the judiciary, and the amnesty laws promulgated in 1995 give rise to a serious situation in which the perpetrators of human rights violations enjoy impunity, a circumstance which could well affect the social fabric as a whole. In light of its broad, hemisphere-wide experience, the IACHR is deeply concerned by this, and so its final report will analyze this important question in detail.
35. On this occasion the Commission repeats its doctrine that when human rights crimes occur, the state is under the obligation of investigating and punishing the perpetrators. This international obligation of the state is unrenounceable, and so situations of impunity arising from de facto or de jure amnesties contravene the American Convention on Human Rights and, in addition, undermine the responsibility of the state. The Commission presses for the amnesty laws to be declared null and void and for an independent investigation to be conducted to establish the truth about the events that occurred during the years of violence. In addition, the state has the power to and obligation of punishing such violations in order to protect the population and social tranquility.
[6] See, Annex 5 (a).
[7] He is on an Intelligence Service list of journalists to be investigated.
[8] Idem.
[9] Law for Protection of the National Independence of Cuba, Articles 1, 5(1), and 6(1), February 17, 1999.