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1.1 The author of the
communication, dated 17 July 2002, is Mr. Jorge Luis Quispe Roque, a
Peruvian citizen born in 1962, currently being held in the Miguel Castro
Castro special closed prison in Lima. He claims to be the victim of
violations by Peru of articles 9 and 14 of the Covenant. He is not
represented by counsel.
1.2 The Optional Protocol entered into force for the State party on 3
January 1981.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author was a member of the cleaning staff at the César Vallejo
preparatory academy in Lima. On 20 June 1992, at 10 p.m., the author was in
his vehicle with his wife and younger son, in front of his in-laws' home in
Lima, when he was intercepted by a group of armed police officers who forced
him to get into another vehicle; the officers fired shots into the air and
beat and shoved the author. They drove the author to his place of work. When
they arrived, they forced him to enter one of the offices, where they
covered his face with his jacket, sat him down and tied him up. While the
author remained seated, the officers conducted a search of the offices.
2.2 The police asserted that "subversive leaflets and explosives" were found
during the search. The author maintains that this allegation is false and
that the materials that were supposedly found do not exist.
2.3 On 21 June 1992, the author's wife submitted a complaint to the office
of provincial prosecutor No. 4 in Lima against the National Police -
National Counter-Terrorism Directorate (DINCOTE) - concerning the author's
kidnapping, supplying the licence plate numbers of the two vehicles
allegedly used in the kidnapping, and of the author's vehicle which, the
author alleges, was seized by the officers.
2.4 On 24 June 1992, the author's home was searched but no subversive
material was found.
2.5 The author was sentenced to 20 years' imprisonment for an "offence
against the public peace - terrorism - [offences] against public and private
entities - the State -", by the Special Criminal Counter-Terrorism Division
of the High Court of Lima (a "faceless" court) in the collective sentencing
of 30 November 1994.
2.6 The author filed a petition of annulment with Special Division of the
Supreme Court. On 5 September 1996, the Division rejected the petition and
upheld the author's conviction, although it acknowledged that article 285 of
the Code of Criminal Procedure had been incorrectly applied, since ordinary
public and private entities had been considered as aggrieved parties when in
such proceedings the aggrieved party should be the State.
2.7 The author filed a petition for the constitutional guarantee of habeas
corpus with the Constitutional Court, alleging irregularities in the trial;
in its ruling of 22 June 1999, the Constitutional Court declared the
petition inadmissible.
2.8 The author declares that he has not applied to any other international
body with regard to the subject matter of the communication.
THE COMPLAINT
3.1 The author claims to be a victim of a violation of article 9, since he
was arbitrarily arrested without being informed of the reasons for his
arrest or of any charges against him.
3.2 The author maintains that the sentencing court was composed of faceless
judges, that his right to be heard publicly was denied, that the ruling was
based exclusively on police testimony and that he was sentenced mainly for
his alleged ties with the principal defendant, although the nature of those
ties was not specified. Moreover, his lawyer was given only a short time -
30 minutes - to examine the case file, which contained more than 2,000
sheets, and had no opportunity to question witnesses. All of the foregoing
constitutes a violation of article 14 of the Covenant.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 In its observations of 7 March 2005, the State party reports that in
January 2003 the Constitutional Court declared unconstitutional various
procedural and criminal rules for combating terrorism. 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 under
the Code of Criminal Procedure.
4.2 The author's case has been pending in the National Terrorism Division
since 2 September 2004 in the context of a new criminal proceedings case
instituted in accordance with the new anti-terrorist legislation. The State
party therefore considers that the communication should be declared
inadmissible, since domestic remedies have not been exhausted.
THE AUTHOR'S COMMENTS
5.1 The author points out that the State party's comments were not submitted
within the six-month time limit established by rule 97, paragraph 2, of the
Committee's rules of procedure. Consequently, the State party has not
complied with the provisions of article 4, paragraph 2, of the Optional
Protocol.
5.2 The author notes that, while the Constitutional Court urged the Congress
of Peru to replace, within a reasonable period of time, the relevant
anti-terrorist legislation, Congress abdicated its responsibility and, in
Authoritative Act No. 27913 of 8 January 2003, delegated its legislative
powers to adopt anti-terrorist measures to the executive branch. The author
alleges that Legislative Decrees Nos. 921 to 927, which were adopted as a
result of this mandate, have not substantially changed the legislative
framework, since the existing unconstitutional legislation has not been
replaced but has been supplemented in some cases and amended in others.
Thus, not all of the previous anti-terrorist legislation has been repealed.
Specifically, article 2 of Decree-Law No. 25475 retains the basic definition
of the offence of terrorism. Moreover, the Decree-Law provides for the
establishment of a commission composed of representatives of the three
branches of Government, by representatives of the Public Prosecutor's
Office, the armed forces and the police to monitor its implementation; such
a commission is unconstitutional because it violates the principle of
separation of powers. On the basis of all of the foregoing, the author
states that 5,186 citizens, including himself, filed an action of
unconstitutionality (registered under No. 003-2005-PI/TC) with the
Constitutional Court against the ruling of January 2003, referred to in the
observations by the State party; the action is currently pending.
5.3 The author maintains that new Decree-Law No. 926 is unconstitutional and
contrary to article 9, paragraph 3, of the Covenant, since it provides for
the ex officio annulment of proceedings conducted by faceless courts but
does not alter the legal situation of the defendants; that is, it continues
to deprive them of their liberty, as in the case of the author, who has been
serving his sentence for the past 13 years. The author cites the case of
Cruz Flores v. Peru, in which the Inter-American Commission on Human Rights
considered that the fact that the new legislation did not take account of
the time spent in deprivation of liberty as a result of the previous trial
constituted arbitrary detention.
5.4 The author maintains that Legislative Decree No. 922 is also
unconstitutional and contrary to article 14, paragraph 1, of the Covenant,
since it establishes a special court, the National Terrorism Division, for
cases of terrorism, and not courts of ordinary jurisdiction.
5.5 The author reiterates that he has exhausted all available domestic
remedies, having filed a special remedy with the Constitutional Court.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the International Covenant on Civil and Political Rights.
6.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement, in
compliance with the provisions of article 5, paragraph 2 (a), of the
Optional Protocol.
6.3 With regard to the requirement of the exhaustion of domestic remedies,
the Committee takes note of the State party's assertion that the case is
pending in the National Terrorism Division in the context of new criminal
proceedings instituted in accordance with the new anti-terrorist legislation
and that, consequently, domestic remedies have not been exhausted. However,
the Committee notes that the author was arrested on 20 June 1992 and
subsequently tried and sentenced under Decree-Law 25475 of 5 May 1992, and
that he filed all the appeals permitted under that legislation against his
sentence. All of this took place prior to the date on which the author
submitted his communication to the Committee. The fact that the legislation
that applied to the author and on which his communication was based was
declared null and void several years later cannot be considered to his
disadvantage. In the circumstances, it cannot be claimed that the author
should wait for the Peruvian courts to take a new decision before the
Committee can consider the case under the Optional Protocol, particularly
when the author has been deprived of liberty for 13 years.
6.4 The Committee accordingly declares the communication admissible with
regard to the alleged violations of articles 9 and 14 of the Covenant and
proceeds to consider the merits of the complaint under article 5, paragraph
1, of the Optional Protocol, bearing in mind the information provided by the
parties.
CONSIDERATION OF THE MERITS
7.1 The Committee regrets that the State party has not submitted
observations on the merits of the case under consideration. In this regard,
it recalls that it may be inferred from article 4, paragraph 2, of the
Optional Protocol that the State party must examine in good faith all the
charges against it and provide the Committee with all the information at its
disposal. Since the State party has not cooperated with the Committee in the
matters raised, the author's claims must be given their due importance
insofar as they are substantiated.
7.2 With regard to the author's contentions concerning a violation of
article 9, since he was arrested without being informed of the reasons for
his arrest, the Committee considers that, as the State party has not replied
to these allegations, due weight must be given to them and it must be taken
that the events occurred as the author described them. The Committee thus
considers that there has been a violation of article 9 of the Covenant.
7.3 With regard to the author's complaints in relation to article 14, the
Committee takes note of his allegations that his trial was conducted by a
court composed of faceless judges, that the interrogation of witnesses was
not permitted and that his lawyer had only 30 minutes to examine the case
file. In the circumstances, the Committee, recalling all of its previous
jurisprudence in similar cases, concludes that article 14 of the Covenant as
a whole was violated.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose a violation of
articles 9 and 14 of the Covenant.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is required to furnish the author with an effective remedy and
appropriate compensation. In the light of the long period that he has
already spent in prison and the nature of the acts of which he is accused,
the State party should consider the possibility of terminating his
deprivation of liberty, pending the outcome of the current proceedings
against him. Such proceedings must comply with all the guarantees required
by the Covenant.
10. Bearing in mind that, as a party to the Optional Protocol, the State
party recognizes the competence of the Committee to determine whether there
has been a violation of the Covenant, and that, under article 2 of the
Covenant, the State party has undertaken to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the
Covenant and to offer an effective and enforceable remedy when a violation
is found to have occurred, the Committee wishes to receive from the State
party, within 90 days, information about the measures taken to give effect
to the present Views. The State party is also requested to publish the
Committee's Views.
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Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly. |
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