United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1998 - Peru, 26 February 1999, available at: http://www.refworld.org/docid/3ae6aa5b1c.html [accessed 17 April 2014]
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Peru is a multiparty republic with a dominant executive branch that often uses its control of the legislature and the judiciary to the detriment of the democratic process. Under provisions of a Constitution enacted in 1993, President Alberto Fujimori was reelected to a second 5-year term in 1995, at which time his party also won a controlling majority in Congress. In 1996 the congressional majority, faced with the constitutional provision limiting presidents to no more than two consecutive terms in office, passed a law that would permit President Fujimori to run for a third consecutive term. Congress removed three members of the Constitutional Tribunal who had declared themselves against the interpretation allowing a third term, and the Tribunal ceased to function effectively, unable to rule on any constitutional issues for lack of a quorum. Although the Constitution provides for an independent judiciary, in practice the judicial system is inefficient, often corrupt, and has appeared to be easily manipulated by the executive branch. The police and military share the responsibility for internal security. However, in May President Fujimori issued a decree granting the National Intelligence Service an as-yet-unspecified role in anticrime efforts. Since 1980 the security forces have directed most of their efforts against the Sendero Luminoso (Shining Path) and Tupac Amaru Revolutionary Movement (MRTA) terrorist groups. Due in large part to the Governmentâs strong actions, the threat posed by these groups continued to decline in overall terms. Within specified emergency zones, which cover 16 percent of the country and where the military is in charge, certain constitutional protections are suspended. In the rest of the country, the civilian authorities generally maintain effective control of the security forces. Nevertheless, the military and the police were responsible for serious human rights abuses. The Government has implemented major economic reforms, transforming the economy from one based on heavy regulation to a market-oriented one. The Government has eliminated controls on capital flows, prices, and trade. It has privatized most state enterprises and plans to sell those that remain by the end of 1999. The inflation rate has dropped into single digits, and growth and foreign investment have soared. Per capita gross domestic product is estimated at $2,000. Major exports include copper as well as other minerals, fishmeal, and textiles. Illegal exports of processed coca are thought to have earned about $300 to $500 million annually in past years. The unemployment rate in Lima is estimated at 8 percent, but the national rate of underemployment is about 40 percent. More than half of the economically active population work in the informal sector of the economy, which largely functions beyond government supervision and taxation. The poor constitute 50 percent of the population, and slightly less than 15 percent of the population live in extreme poverty. Although egregious abuses of human rights continued to decline, there were serious problems in several areas. Security forces were responsible for torture and beatings, and impunity remained a problem. In February two of the four officers who had been sentenced to prison for torturing Army Intelligence Service (SIE) officer Leonor La Rosa in 1997 were pardoned and released. Overall prison conditions remained extremely harsh, particularly in maximum security facilities. Arbitrary arrest and detention, prolonged pretrial detention, absence of accountability, lack of due process, and lengthy trial delays remained problems. The general inefficiency of the judicial system persisted, and it remained subject to executive influence. It is widely believed that the Government infringed on citizensâ privacy rights. A congressional investigation of a reported secret government intelligence program to monitor the telephones of a broad spectrum of government officials, opposition politicians, journalists, business executives, and other public figures found no evidence of government wrongdoing and sought to blame the journalists who had uncovered the monitoring program for having themselves instigated it. The Government infringed on press freedom. Journalists faced increased harassment and intimidation and practiced even greater self-censorship. The Government allegedly instigated and financed a media campaign by the tabloid press defaming the investigative staff of an opposition newspaper. The authorities at times hindered the operations of human rights monitors. Violence and discrimination against women were widespread. Violence against children and discrimination against the disabled, indigenous people, and racial and ethnic minorities remained problems. Child labor, including forced child labor, remained a serious problem. The office of the Defender of the People, or Human Rights Ombudsman, continued to enjoy the public's respect and confidence. The ad hoc Pardons Commission so far has received pardon applications from 80 percent of those individuals unjustly jailed for terrorism or treason. During the year, the Commission continued to recommend presidential pardons for applicants, and won the release of an additional 102 detainees, bringing the total of those pardoned and released to 462. The President signed into law legislation classifying torture as a crime to be tried in civilian courts. Following the 1997 abolition of the "faceless" (anonymous) tribunals, the civilian jurisdiction created a new system of specialized terrorism courts with identifiable judges and a greater degree of due process. Sendero Luminoso and MRTA terrorists continued to commit the great majority of killings and other egregious abuses. Members of Sendero Luminoso used torture and other forms of brutality, disrupted the home and family life of many citizens, and violated the rights of indigenous people. Due to the overall decline in the threat posed by these groups, there was a corresponding reduction in the abuses that they committed.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom From:
a. Political and Other Extrajudicial Killing
There were press reports of five extrajudicial killings carried out by the security forces, one of which may have been politically motivated. In all cases, the alleged perpetrators were detained and charged. On the night of April 14, a 12-man army unit on an antiterrorist patrol killed Emetrio Santos Calvay, a teacher, and one of his friends, near Chiclayo, allegedly because they suspected that the victims were terrorists, although the unit had no evidence that this was the case. The patrol members attempted to conceal the true nature of the incident by claiming that they had clashed with a band of 30 terrorists and, in order to substantiate their story, even lightly injured 2 of their own patrol members. However, their credibility became suspect when they were unable to produce any of the alleged terrorists' weapons and failed to file an official report of the incident. The local prosecutor filed charges against some of the men. On November 30, a court sentenced the planner of the crime to 18 years in prison, the three men who actually carried out the killings to 12-year sentences, and five accomplices to 5 years in prison. On February 7, two police officers accosted Willy Llerena Macedo and Paolo Herrera Lesama in the city of Pucallpa. The officers beat the men in the face and drove them to a police station where the assault and beating continued, before Paolo Herrera was eventually released. After learning of his whereabouts, Llerenaâs relatives arrived at the police station where they were denied any information. On February 9, the relatives again went to the station where they were told that Llerena had been hospitalized. Hospital officials told them that Llerena had died and that his body was at the morgue. According to the death certificate, death was caused by severe blows to the head. The two police officers were charged with causing serious injury resulting in death and with abuse of authority. In March two soldiers killed farm hands Genaro Julca Bula and Alberto Aponte in the village of Lumbra, Huaral province. The authorities brought charges against the soldiers, Carlos Quito Lopez and Raul Quito Herrera, as well as against two other soldiers at the base who had supplied them with weapons. The authorities ordered the accused soldiers to appear before court in March 1999. No progress was made in the case of Mariela Barreto, an SIE agent whose dismembered and decapitated body was found in March 1997. Although President Fujimori had promised an exhaustive investigation, neither the Public Ministry nor the police so far have succeeded in determining a motive for the killing or a likely suspect. However, in a March 16 television interview from abroad, Luisa Margarita Zanatta Muedas, a former SIE agent, provided what appeared to be credible information about wiretapping and other operations conducted by her former agency. In response to the interview and to a congressional request, Human Rights Ombudsman Jorge Santistevan dispatched two members of his staff to interview Zanatta for additional leads regarding the Barreto case. In June a specialized criminal court in Iquitos sentenced six soldiers to 20 yearsâ imprisonment and their commanding officer Milton Trigoso to life in prison, in a case of kidnaping, aggravated robbery, and homicide. The 7 were among 16 soldiers who were arrested and discharged from the service for having beaten, robbed, and murdered 2 Japanese students who had been exploring the Amazon River by raft in 1997. The incident led to strong public criticism, both because of the country's generally close ties with Japan and, more specifically, because of the MRTA hostage crisis at the Japanese Ambassador's residence, which ended in April 1997. In a move atypical of cases involving members of the armed forces, President Fujimori had announced that those responsible would be tried in a civilian rather than a military court. In addition, the Public Ministry appointed a special prosecutor from Lima to go to Iquitos and carry out the investigation phase of the case. Trigoso's lawyer said that he would appeal his client's sentence. The December 1992 killing of union leader Pedro Huillca Tecse was initially thought to have been carried out by Sendero Luminoso terrorists. However, in September 1995, jailed former SIE agent Mesmer Carles Talledo charged in letters written from his prison cell that Huillca Tecse's murder, as well as a number of other high-profile bombings and massacres, actually had been perpetrated by the Colina death squad, whose operations are believed by critics of the Government to have been authorized and controlled by the National Intelligence Service. In November 1997, President Fujimori pardoned Mesmer Carles Talledo for having been convicted wrongly of terrorism. When the Congressional Human Rights Subcommittee inquiring into Carles Talledo's charges summoned him to testify before it, he denied ever having made any allegations against the Colina death squad, admitted no knowledge of the Colina group, could not remember ever having written the accusatory letters from his cell, and even disputed the fact that one of the members of the subcommittee had questioned him earlier in a videotaped interview. Coincidentally, Jose Luis Bazan, another former SIE agent, who had corroborated Carles Talledo's allegations to investigative reporter Jose Arrieta, also retracted his original story. Although Carles Talledo attempted to explain his behavior by claiming that he was undergoing treatment for psychosis and schizophrenia, critics of the Government believe that both Carles Talledo's and Bazan's change of heart was due to fear, blackmail, or the promise of some reward from the intelligence services. After refusing to subject Carles Talledo to a lie-detector test or to submit his letters to graphological analysis, the Human Rights Subcommittee decided in June to shelve its inquiry for lack of proof and let the Public Ministry pursue the investigation further. Arrieta fled the country due to fear that the information he had received from Bazan made him particularly vulnerable to possible attack by the Government's intelligence agents. According to statistics gathered by the Legal Defense Institute, the Sendero Luminoso and MRTA terrorist groups carried out 454 violent attacks during the first 10 months of the year. During this period, the total number of deaths attributable to the internal conflict was 117. Of these, the security forces, including both military and police, suffered 27 fatalities while the members of the terrorist groups incurred 21 deaths. The civilian population, with 69 deaths, suffered the highest toll. In March Sendero Luminoso terrorists killed Waudulco Munante in suburban Lima, dynamited his body, attached a note to his remains describing him as an "exploiter" of the people, and left Sendero Luminoso literature at the scene. In August a band of some 30 Sendero Luminoso terrorists dressed in military uniforms killed Celso Rodriguez Vargas, the mayor of Saposoa, in Huallaga province, San Martin department, after summarily sentencing him to death in a "people's trial." They also attacked the local National Police post, where they killed two other civilians.
There were no reports of disappearances alleged to have been politically motivated or carried out by security forces. At the end of its November fact-finding visit, the Inter-American Commission on Human Rights (IACHR) said in press statement that the IACHR had not received any recent complaints of disappearances. In February President Fujimori signed into law legislation that specified a sentence of up to 15 years for perpetrators of forced disappearances. In a meeting with the Peruvian Association of Relatives of Kidnaped, Detained, and Disappeared Persons, Human Rights Ombudsman Santistevan highlighted the need to resolve the problems left over from the internal conflict, among them the 2,371 cases of persons who had disappeared and had never been found. He said his office would work to help the relatives in locating and identifying the bodies of those who had disappeared and seeking appropriate compensation from the State. At year's end, compensation in the Neira Alegria case, dating from 1986, still had not been paid by the Government, despite several rulings by the Inter-American Court of Human Rights. At its last session of the year, the Court ordered the Government to pay $245,000 in compensation to the family of Ernesto Rafael Castillo Paez, who was last seen in October 1990 being forcibly detained and driven away by police. In November 1997, the Inter-American Court of Human Rights ruled that the Government had violated Castillo Paezâs right to life, liberty, and personal integrity. The Court also had ordered the Government to punish those responsible and to return the victimâs remains to his family.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution prohibits torture and inhuman or humiliating treatment; however, in practice torture and brutal treatment of detainees by the security forces occur frequently. Torture most often takes place during the period immediately following arrest. Human rights groups report that the incidence of torture is high during police detention, in part because families are prohibited from visiting suspects while they are held incommunicado, and attorneys have only limited access to them (see Section 1.d.). In February the President signed legislation that classifies torture as a crime whose perpetrators would be tried in the civilian jurisdiction and be subject to lengthy prison sentences. The new law brings before civilian courts torture suspects who belong to the security forces, a provision long resisted by the military. The statute specifies a sentence of 5 to 10 years for anyone convicted of torture. If the torture results in grave injury to the victim, the perpetrator would receive a 6- to 12-year sentence and, if the torture results in the death of the victim, the perpetrator would be sentenced for 8 to 20 years. Human rights groups had criticized the lack of a criminal classification of torture, particularly in cases involving members of the security forces, who were typically tried on charges of abuse of authority or physical assault in military courts, which tended to opt for lenient sentences. In June the United Nations Committee Against Torture called on the Government to reestablish the rule of law by restoring to the judiciary its independent character and to adopt measures guaranteeing compensation to the victims of torture. Physical torture and brutal treatment of detainees by security force personnel are common occurrences, particularly in police cells operated by the National Counterterrorism Directorate (DINCOTE) and in detention facilities on military bases where terrorism and treason suspects normally are held. Psychological torture and abuse, which result from the harsh conditions in which detainees are held, are more characteristic of the prisons. The Legal Defense Institute reported that the United Nations Committee Against Torture had received 617 complaints of torture allegedly committed between 1993 and 1997. Human rights monitors and other credible eyewitnesses continued to report that security forces routinely torture suspects at military bases and detention centers in some of the emergency zones, although the presence of International Committee of the Red Cross (ICRC) delegates in these zones is an important factor in minimizing human rights abuses against the civilian population there. In these zones, which cover 16 percent of the country's territory and 23 percent of its population, certain constitutional protections are suspended due to high levels of terrorist activity, even though at least some areas designated as emergency zones have not reported serious terrorist incidents for some time. There were frequent reports of beatings and other mistreatment of adolescents in army bases, in connection with the forcible conscription of youths for military service (see Section 1.f.). In October a pretrial investigation began into charges of torture against a police officer who, if convicted, would be the first person to be sent to prison under the new torture statute promulgated in February. On September 1, officer Augusto Raymundo Gutierrez Rivero, of San Francisco district, Ayacucho department, allegedly brutally beat two illiterate farm hands in the district police station while interrogating them about charges by their boss that they had stolen about $600 (2,000 soles). As a result, one of the men, Lucas Huaman Cruz, age 62, died 24 hours later. An autopsy revealed that Huaman's liver, kidneys, and spleen were completely crushed, his testicles were inflamed, one of his ribs was broken, his whole body was bruised, and there was internal bleeding in his abdomen. Prior to going to the police station, the two farm hands reportedly were forced to admit their guilt before a justice of the peace, and intimidated into putting their thumbprint on a statement in which they agreed to pay back the stolen money. In September Pablo Waldir Cerron Gonzalez of Huamachuco sought help from a Trujillo human rights group following an alleged incident of police brutality. Cerron claimed that on September 4, policeman Elmer Perez Arnao entered his house without a judicial warrant, and after beating, kicking, and punching him, drove him with a colleague to a police station. At the station, police continued to beat Cerron, particularly on the back and stomach, and forcibly dipped his head in a barrel of water until he almost drowned. According to Cerron, the motive for the policemanâs assault was that Cerron owed about $6 (18 soles) to a local bar. Although the Trujillo human rights group had not reported any legal action in the case by yearâs end, it obtained a doctorâs statement confirming the severe contusions and internal injuries to Cerronâs stomach and back. In addition to beatings, common methods of torture and other inhuman or degrading treatment included electric shock, water torture, asphyxiation, the hanging of victims by a rope attached to hands tied behind the back, and, in the case of female detainees, rape. Common forms of psychological torture included sleep deprivation and death threats against both the detainees and their families. Interrogators frequently blindfolded their victims during torture to prevent them from later identifying their abusers. The authorities rarely brought the perpetrators of torture to justice. In February police officers reportedly beat Willy Llerena Macedo and Paolo Herrera Lesama. Llerena died as a result of this abuse (see Section 1.a.). The police also beat and injured student protesters in June (see Section 2.a.). In April ousted Constitutional Tribunal judge and Dean of the Lima Bar Association Delia Revoredo claimed that she was being threatened by the National Intelligence Service for her outspoken criticism of unconstitutional and authoritarian actions taken by the Fujimori regime. She also maintained that the custom fraud charges brought against her businessman husband Jaime Mur for importing a used car on which he paid the taxes and duties were nothing more than a pretext for bringing added pressure to bear on her. As a result, they both sought and received political asylum in Costa Rica. Revoredo then presented a comprehensive complaint against the Government to the IACHR. In September Revoredo returned to the country, thereby risking revocation of her asylum. Soon after, the authorities withdrew the customs fraud charges against Mur. There were significant developments during the year in the case of Leonor La Rosa, the SIE agent who was tortured by four of her fellow officers and superiors in 1997 after she allegedly revealed to the media a number of SIE undercover operations and refused to participate in one of them herself. After spending several months in jail for abuse of authority, two of the four officers who had tortured her were released quietly in February. In June the then-Prime Minister managed to have the military's disloyalty charges against La Rosa quashed. At year's end, the IACHR agreed to consider her case and gave the Government and La Rosa 60 days to reach a settlement on her claim for compensation and her request to be declared eligible for military disability pension benefits. There continued to be credible reports that Sendero Luminoso was also responsible for acts of torture, including cases that led to death. Prison conditions continued to be extremely harsh due to low budgets, the inconsistent quality of prison administration, severe overcrowding, lack of sanitation, and poor nutrition and health care. Prisoners often were victimized by both prison guards and fellow inmates. Corruption continued to be a serious problem among the poorly paid prison guards, many of whom were implicated in such offenses as sexual blackmail, extortion, the sale of narcotics and weapons, and the acceptance of bribes in exchange for favors that ranged from providing a mattress to arranging an escape. Since prison authorities do not supply adequate bedding and only budget about $0.75 (2.5 soles) per prisoner per day for food, the families of prisoners must provide for these basic needs. In high-security prisons, female inmates are allowed to see their children only once a week. However, in prisons that house only common criminals, such as Lima's Chorrillos women's prison, children 3 years of age and younger live with their jailed mothers. Overcrowding and inadequate infrastructure continued to hamper efforts to improve the living conditions of prison inmates. At Lima's Lurigancho men's prison, the country's largest, more than 5,000 prisoners live in a facility built for 1,500. Inmates have only intermittent access to running water; bathing facilities are inadequate; kitchen facilities are unhygienic; and prisoners sleep in hallways and common areas due to a lack of cell space. Illegal drugs are abundant in many prisons, and tuberculosis and AIDS are reportedly at near-epidemic levels. Detainees held temporarily while awaiting arraignment at Lima's Palace of Justice are not allowed outside for fresh air and have restricted access to bathrooms. According to the Catholic Bishop's Social Action Commission (CEAS), only 10 percent of the country's 89 prisons have adequate facilities. In July the Human Rights Ombudsman published a report on prison conditions and administration which highlighted many serious shortcomings, including a shortage of trained medical personnel, spotty legal representation for prisoners, and insufficient numbers of social workers. Although the Ombudsman's staff visited only 37 prisons, those facilities accounted for 21,700 prisoners, or 89 percent of the country's total prison population of 24,821. The Ombudsman reported that 8 out of the 37 prisons visited have no doctor on staff, that 5 prisons have neither doctors nor nurses on staff, that 4 prisons have no lawyer on staff, that 5 prisons have no social workers on staff, and that 6 prisons have no psychologists on staff. The Ombudsman indicated that the operating philosophy in the prison system is one of punishment rather than rehabilitation: only 33 percent of prisoners do some form of work, and only 28 percent participate in some kind of educational activity. In June 800 prisoners classified as nondangerous were transferred from Lurigancho to the new prison in Canete, where work facilities are available. According to human rights monitors, the recently opened Challapalca prison in Tarata province, Tacna department, seriously violates international norms and standards, particularly with respect to its isolation and high altitude. Located at an altitude of about 14,000 feet, Challapalca's freezing temperatures and oxygen-thin air are believed to have an unavoidably negative effect on the health of prisoners. Moreover, since the prison only can be reached after an all-night bus ride from the nearest population center, most families only rarely would be able to visit their jailed relatives; hospital care is 8 hours away by overland transportation; and face-to-face consultations by inmates with their attorneys are extremely rare. In order to relieve some of the isolation, the ICRC funds a monthly visit to Challapalca by the families of its inmates. Three visiting human rights monitors representing the International Federation of Human Rights, as well as the visiting members of the IACHR, called for Challapalca prison to be closed down. During the year, there were a number of riots, mutinies, and hunger strikes in various prisons, including Huancayo's El Tambo juvenile detention center, the Yanamayo high-security prison for terrorism and treason convicts, Tarapoto's Juanjui prison, and San Cristobal de Moyobamba prison in San Martin department. The Government permits prison visits by independent human rights monitors. However, during a 12-month period encompassing the 1996-97 MRTA hostage crisis and the subsequent 8 months, the Government suspended ICRC visits to prisoners incarcerated on terrorism and treason charges, thereby violating its 1992 agreement authorizing ICRC delegates to meet and interview such prisoners away from public view and with no witnesses present. Nonetheless, for the first 10 months of that period, identical ICRC visits to detainees in police holding cells proceeded as before. By January, in line with President Fujimori's December 1997 announcement, ICRC delegates fully resumed their regular visits to terrorism and treason convicts in maximum security prisons, which had been suspended at the time of the hostage crisis. However, beginning in September 1997, DINCOTE officials had denied ICRC delegates visiting its Lima detention cells the opportunity to interview detainees alone, insisting that a DINCOTE witness be present. After repeated ICRC protests against such a critical change of policy, the original no-witness-present policy was reinstated on September 10.
d. Arbitrary Arrest, Detention, or Exile
Arbitrary arrest and detention remain problems. The Constitution, Criminal Code, and antiterrorist statutes delineate the arrest and detention process. However, a number of constitutional protections are suspended in the emergency zones where, for example, security forces do not need an arrest warrant in order to detain a suspect. The law permits the police to detain terrorism and treason suspects for a maximum of 15 days and to hold them incommunicado for the first 10 days. Treason suspects, who are automatically handed over to military jurisdiction, may be held incommunicado for an additional 30 days. The authorities prohibit families from visiting suspects being held incommunicado, and attorneys have access to them only during the preparation and giving of sworn statements to the prosecutor. Outside the emergency zones, the Constitution requires a written judicial warrant for an arrest to be made unless the perpetrator of a crime is caught in the act. With respect to detention without arrest, the Organic Law of the National Police contradicts the constitutional provision, permitting the police to detain a person for any investigative purpose. Although the authorities must arraign most arrested persons within 24 hours, they often violate this requirement. However, in cases of terrorism or espionage, arraignments must take place within 15 days. The military authorities must turn over persons they detain to the civilian police within 24 hours; in remote areas of the country, this must be done as soon as practicable. However, the military often disregard this requirement. At yearâs end, the Human Rights Ombudsman issued recommendations designed to resolve the cases of an estimated 5,228 individuals still subject to detention orders, many of whom were forced against their will to participate in terrorist activities during the internal conflict, or were accused falsely of links with terrorist groups. The Ombudsman called on the Government to rescind all outstanding detention orders that were more than 5 years old, to cancel all orders that did not comply with legal specifications, and to authorize the ad hoc Pardons Commission to evaluate the remaining cases and recommend that the President revoke those detention orders where insufficient evidence existed that the individuals in question either committed terrorist acts or were associated with terrorist groups. Detainees have the right to a prompt judicial determination of the legality of their detention and adjudication of their habeas corpus petitions. However, according to human rights attorneys, judges have denied most requests for such hearings. In May one of the decrees issued by the executive branch as part of the war on crime (see Section 1.e.) further restricted the ability of detainees in the provinces of Lima and Callao to petition for habeas corpus by limiting the number of judges able to hear such petitions to no more than 2, instead of 40 to 50 as before, thereby significantly delaying justice. In 1993 the antiterrorism laws were amended to authorize lower court and superior court judges to order the unconditional release of suspected terrorists, if there was insufficient evidence to bring a case against them. However, judges rarely act on this provision. As a result, accused terrorists sometimes must wait until their cases have been reviewed and dismissed by the Supreme Court before they are freed, a process that often lasts more than a year. At year's end, only one-third of a total prison population of 26,330 had been sentenced, while the remainder still either were awaiting trial or had not yet been sentenced finally. In Lurigancho, 96 percent of the inmate population remained unsentenced. The reported ratio of sentenced to unsentenced prisoners is made somewhat wider than the actual ratio by the fact that many judges are slow to notify the National Penitentiary Institute (INPE) of the final disposition of their trials once they have pronounced their sentences. The CEAS has called for the implementation of a system that would allow detainees to post bail, so that first-time offenders would not have to wait in jail for their trials. According to the INPE, the elapsed time between arrest and trial in civil, criminal, and terrorism cases averages between 26 and 36 months. Those tried by military courts on treason charges generally do not have to wait more than 40 days for their trial, following arrest. However, since trial procedures in military courts are largely devoid of due process protections, the speed with which trials are concluded offers little benefit to the defendants involved. Once trials have concluded, prisoners often have to wait long periods before receiving written copies of their sentences. According to two human rights organizations, police routinely detain persons of African descent on suspicion of having committed crimes, for no other reason than the color of their skin, and rarely act on complaints of crimes against blacks (see Section 5). In November 1997, nine human rights lawyers who had defended Sendero Luminoso terrorists in the military courts, including Luis Ramon Landaure, who had defended Sendero Luminoso founder Abimael Guzman, were themselves arrested as terrorists and charged with treason. The authorities held the lawyers without charge for more than 30 days, denied their habeas corpus petitions, did not give some of them an opportunity to present sworn statements, and provided one with a military lawyer chosen by the military court instead of a lawyer of his own choosing. The military jurisdiction absolved all nine defendants of treason and sent them to be tried for terrorism in the civilian courts. At year's end, the first-instance court ordered two of the lawyers released, pending confirmation of the ruling by the Lima superior court, which was not scheduled to issue its decision before March 1999. The Lima Bar Association has filed a complaint with the IACHR, charging that the lawyer's habeas corpus petition had been denied unconstitutionally (see Section 1.e.). The Constitution does not permit exile, and the Government respects this prohibition.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary; however, in practice the judicial system is inefficient, often corrupt, and easily manipulated by the executive branch. As a result, public confidence in the judiciary is low. In 1993 the Government appointed the executive commission of the judicial branch and the executive commission of the Public Ministry for a 5-year period. The ostensible mission of both was to carry out judicial reform. However, in reality, these commissions serve as the executive's instrument of control over the judicial system. While the Government points to some administrative and technical progress in caseload reduction and computerization as examples of reform, little has been done to restore the judiciary's independence from the executive. There is a three-tier court structure: lower courts, superior courts, and the Supreme Court. A Constitutional Tribunal rules on the constitutionality of congressional legislation and government actions; a National Judiciary Council tests, nominates, confirms, evaluates, and disciplines judges and prosecutors; and a Judicial Academy trains judges and prosecutors. The Government moved to limit the independence of the Constitutional Tribunal almost from its inception in 1995 and continued such efforts in subsequent years. By year's end, Congress still had not taken any steps to replace the three judges ousted from the Constitutional Tribunal after they voted against the interpretation allowing President Fujimori a third term. This effectively paralyzed the courtâs ability to rule on any constitutional issues for lack of a quorum (see Section 3). The justice system generally is based on the Napoleonic Code. In the civilian courts, criminal cases must move through a total of three distinct prosecutorial and judicial phases. The first phase takes place in a lower court where a Public Ministry prosecutor investigates cases and submits an opinion to an examining judge who initially determines whether there is sufficient evidence to issue an indictment. If there is, the judge studies the case, conducts all necessary investigations, and prepares a case report for delivery to the superior court prosecutor. In the second phase, the superior court prosecutor reviews the lower court decision and, if the review results in formal charges, renders an advisory opinion to a superior court where a three-judge panel holds an oral trial. All criminal case convictions in the civilian courts must proceed to the final phase, where the Supreme Court hears appeals and confirms or rejects the superior court sentences. Under the military justice system, judges in the lower military courts have the power to sentence and are required to pass judgment within 10 days of a trial's opening. Defendants then may appeal their sentences to the Superior Military Council which, in turn, has 10 days to make its decision. A final appeal may be made to the Supreme Council of Military Justice, which must issue its ruling within 5 days. Of the country's 1,531 judges, only 574 have permanent appointments, having been independently selected. The remaining 957, including 19 of the 33 judges of the Supreme Court, have provisional or temporary status only. Critics charge that, since these judges lack tenure, they are much more susceptible to outside pressures. This reliance by the Government on untenured, provisional, and temporary judges was demonstrated when the executive commission of the judicial branch created two specialized chambers of the Supreme Court, staffed by provisional and temporary judges, which proceeded to assume control over tax, customs, and narcotics crimes previously under the jurisdiction of the tenured judges of the Lima superior court. This enabled the Government to supervise more closely such cases as the fraud case of Baruch Ivcher (see Section 2.d.) and the customs case against Jaime Mur (see Section 1.c.). Further tightening the executive's grip on the judicial system, Congress passed a law in March transferring the power to dismiss Supreme Court judges and prosecutors from the formerly independent National Judiciary Council to the judicial branch, in the case of judges, and to the Public Ministry, in the case of prosecutors. The new law requires investigations of judges and prosecutors accused of infractions, as well as decisions on dismissal, to be carried out by the Executive Commissions of the judicial branch and the Public Ministry, both of which are controlled by strong allies of President Fujimori. All seven members of the National Judiciary Council resigned simultaneously to protest the curtailment of their powers. In addition, the World Bank, which earlier had announced a $22.5 million loan for judicial reform, suspended disbursement of the loan pending the restoration of the Council's powers. In April and May, the judicial bodies represented on the National Judiciary Council named replacement candidates for all but one of their respective seats. In September Congress amended the law to restore only partially the Council's powers and left the Public Ministry in charge of determining whom the Council could investigate. In April the four members of the Executive Council of the Judicial Academy also had resigned, partly because no steps had been taken to restore the academy's autonomous status as envisioned in the basic law governing its policies and procedures, and partly in solidarity with the members of the National Judiciary Council who had resigned. In one of their first acts, the new members appointed to the Executive Council of the Judicial Academy decided to lengthen the training program for judicial and prosecutorial candidates from 6 months to 2 years, a move that critics of the Government claim was designed to delay even further the appointment of tenured judges and prosecutors and to prolong the reliance on provisional and temporary officials more susceptible to manipulation by the executive branch. In November the visiting IACHR fact-finding mission called on the Government to terminate the Executive Commissions of the judicial branch and the Public Ministry when their 5-year terms expired at the end of 1998. However, in December, despite much political, press, and public opposition, the congressional majority extended the life of the two executive commissions for an additional 2 years, until the end of 2000. All defendants have the right to be present at their trial. Defendants also have the right to counsel. However, a public defender system exists in name only; the Government often fails to provide indigent defendants with qualified attorneys. Human rights groups have criticized strongly the power of the military courts to try civilians in cases of treason or aggravated terrorism and the powerlessness of the civilian judicial system to review military court decisions. In 1997 Gustavo Adolfo Cesti Hurtado, an insurance broker who had retired from military service 13 years earlier, was arrested, prosecuted, convicted, and sentenced to prison by the military justice system in a complicated case involving, in part, alleged insurance fraud in a military purchase of helicopters. When a civilian court approved a habeas corpus petition and ordered the military court to release Cesti, the military jurisdiction not only refused to do so but also charged the civilian judges with usurpation of power and sought to have them reassigned. At yearâs end, the case was before the Inter-American Court of Human Rights, which rejected a government motion to dismiss it. The Human Rights Ombudsman asked the police to ensure the safety and protection of Cesti's wife, who had complained that she had been the target of kidnap attempts. While terrorism cases are tried in civilian courts, cases of treason or aggravated terrorism may be tried only before military courts. Human rights groups charged that the vaguely worded definitions of certain crimes in the antiterrorism statutes often lead military judges to issue sentences disproportionate to the crimes committed. At the military superior court and Supreme Court levels, a significant number of judges are active-duty line officers with little or no professional legal training. In May Congress acceded to President Fujimori's request to delegate to the executive branch exclusive powers for a 15-day period to promulgate measures specifically designed to combat the growing wave of violent street crime. In a series of 11 decrees, the Government classified acts of "extreme violence," such as criminal gang activity and the use of explosives, as "aggravated terrorism," to be tried automatically by the military courts, with a maximum penalty of life imprisonment. In the case of "aggravated crimes" such as homicide and kidnaping, the judicial proceedings would be so accelerated as to increase the likelihood of innocent persons being convicted, as was the case in many terrorism and treason cases in the past. Accused criminals would be able to have their sentences reduced if they informed on other individuals, thereby increasing the likelihood of serious abuses, as was the case with the repentance law for terrorists. Finally, the Government created the National Intelligence Directorate for Social Peace and Safety, thereby intensifying still further the role of the National Intelligence Service in public life. Proceedings in terrorism cases in the civilian courts, and particularly in treason cases in the military courts, do not meet internationally accepted standards of openness, fairness, and due process. In practice, military courts hold treason trials in secret, although such secrecy is not required by law. Defense attorneys in treason trials are not permitted adequate access to the files containing the State's evidence against their clients, nor are they allowed to question police or military witnesses either before or during the trial. Human rights groups charge that some military judges have sentenced defendants without having first notified their lawyers that their clients' trials had even begun. During the year, the military courts tried 146 persons charged with treason or aggravated terrorism. These courts handed down 84 prison sentences, remitted the cases of 58 persons to civilian jurisdiction to be tried for terrorism, and acquitted 4 persons. Of the 84 persons who were sentenced, 36 received a life sentence. In June then-Prime Minister Javier Valle Riestra drew attention to the subject of due process in the military courts when he recommended in a television interview that U.S. citizen Lori Berenson, who was convicted in a military court in 1996 of aggravated terrorism for her association with the MRTA and is serving a life sentence, simply be pardoned and expelled. President Fujimori immediately rejected the suggestion. Defendants in treason cases who are found not guilty by a military court may be remanded to a civilian court for a second trial on terrorism charges based on the same facts, a practice criticized by human rights monitors as double jeopardy. This was the main issue that led the Inter-American Court of Human Rights in 1997 to order the Government to release Maria Elena Loayza Tamayo from jail and pay her compensation. After the military justice system had absolved her of treason charges, Loayza was retried for terrorism by a civilian court, which sentenced her to 20 years in prison. Although the Government released Loayza, it failed to comply with the compensation order. Accordingly, in November the Court issued a ruling specifying the precise amount of compensation to be paid by the Government within 6 months: $99,000 to Loayza herself and $78,000 to Loayza's children, parents, and attorney sister, who had served as her legal representative. In addition, the Court ordered the Government to reemploy Loayza as a teacher in a public school, to pay her at a level equal to that to which she would have been entitled had she not been imprisoned, and to count the time that she spent in jail as time worked for purposes of calculating her retirement pension. In April U.N. Human Rights Commission Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy, presented the oral introduction of his report on Peru to the Commission, following a September 1996 visit to the country. Even though the "faceless" military and civilian courts were abolished in 1997, and the identities of judges in treason and terrorism cases no longer are concealed, the Special Rapporteur's criticisms still are relevant in regard to the basic unfairness, lack of openness, and shortcomings in due process that are characteristic of the military justice system, in particular. Cumaraswamy also criticized the climate of impunity that has characterized the military justice system ever since Congress passed the amnesty laws of 1995. He said that such laws cannot relieve the Government of its obligation under the International Covenant of Civil and Political Rights to investigate human rights violations, and that they deprive the victims of abuses of their right to the truth and to an effective remedy. Nevertheless, the military judicial system and its supporters in Congress continued to reject any outside suggestion of reform. When, in March, the Human Rights Ombudsman invited the military courts to participate in a conference on his recommendations for reform of the military justice system, the invitation was ignored, and not a single military judge or prosecutor attended. In the civilian jurisdiction, terrorism cases are tried by a new specialized terrorism division of the Superior Court, which began to function in the spring. The division is based in Lima, but its judges travel to the provinces as needed. Prior to this change, the old provincial terrorism court in Puno tried five military personnel and one civilian who reportedly had bombed the local affiliate of a television station that carried a national news program known for its investigative reports of alleged government wrongdoing. When the Puno court absolved the defendants in the case, the new specialized terrorism division of the superior court in Lima ordered all the old provincial terrorism courts to cease hearing terrorism trials unless one or two Lima-based judges were included on the bench. The Puno court decision in the television station bombing case was appealed to the Supreme Court, which overturned it in September and ordered the case to be retried. Besides no longer shielding their identities, the judges trying suspected terrorists in the reformed civilian terrorism courts hold their trials inside maximum-security prisons. Although the trials theoretically are open to the public, few persons attend them. According to experienced human rights lawyers, many of the once anonymous judges have begun to embrace a more balanced judicial conception of guilt and innocence and base their decisions on more reasoned arguments than before. The ad hoc Pardons Commission, established by Congress in 1996, has received pardon applications from 80 percent of those individuals unjustly jailed for terrorism and treason, and continued its mission to recommend presidential pardons for such prisoners. The Commission consists of the Human Rights Ombudsman as Chairman, the Minister of Justice, and, representing the President, long-time prison reformer Father Hubert Lanssiers. In December 1997, Congress extended the life of the Commission until August 31. However, in April Congress charged the Commission with the added task of studying the files of the "arrepentidos," or repentant terrorism and treason convicts, and with recommending to the President, in each case, the extent to which the original sentence might be commuted. For this purpose, Congress extended the life of the Pardons Commission to December 31. The Repentance Law of 1992 had provided these convicts, of whom over 400 remain in prison out of an original total of 8,471, with the opportunity to have their original sentences reduced if they admitted their terrorist past, repudiated any previous links with terrorist groups, and turned in the names of other alleged terrorists. This led to the arrest and conviction of many innocent individuals, who were named by arrepentidos and then convicted for terrorism and treason. By year's end, the ad hoc Commission had received applications from 361 arrepentidos requesting that their original sentences be reviewed for possible commutation. In late December, the Commission recommended, and the President agreed, that the sentences of an initial five arrepentidos be commuted. Because of the heavy caseload of requests still outstanding, as well as the yet unfinished work on pardon applications, the Congress decided in December to extend the term of the Pardons Commission until December 31, 1999. During the year, 102 detainees were pardoned, bringing the total of "innocent" terrorism or treason convicts pardoned and released throughout the life of the Pardons Commission to 462. Of this total, 22 had been convicted of treason by military courts and the remaining 440 had been convicted of terrorism in civilian courts. Working along a second track and beginning in 1994, lawyers belonging to four major human rights organizations represented prisoners wrongly charged with terrorism or treason, brought their cases to the courts, and won the release of many. From January 1995 through September 1998, the courts declared innocent and freed 1,110 such prisoners, bringing the total of all prisoners unjustly incarcerated and either pardoned or exonerated to 1,572. In November President Fujimori signed a law restoring certain basic legal rights and benefits to those "innocents" unjustly convicted of treason who have been, or will be, pardoned and released through the ad hoc Commission process. The measure automatically terminates all legal proceedings against the individuals pardoned, expunges their past criminal records, returns their identity documents to them, cancels the fines that were judged against them at the time of their sentencing, and restores to them items removed from their possession during police investigations. However, the new law is silent on the controversial issue of whether and how the State might financially compensate these innocent individuals for the years they were forced to spend in prison. Although human rights groups have called for such compensation to be paid, a presidential pardon does not automatically render a pardoned individual eligible for compensation. The Human Rights Ombudsman has called on the Government and the Congress to formulate a solution to cover all those deserving compensation. The Congressâ Justice Commission appointed a subcommittee to study the issue of compensation. In April Luis Ramon Landaure, who had defended Sendero Luminoso leader Abimael Guzman, and eight other human rights lawyers who had defended Sendero Luminoso terrorists in the military courts were turned over to civilian jurisdiction for trial on terrorism charges (see Section 1.d.). There were no reports of political prisoners. Sendero Luminoso and MRTA members charged with terrorism are not considered to be political prisoners.
f. Arbitrary Interference With Privacy, Family, Home, or Correspondence
The Constitution requires security forces to have a written judicial warrant to enter a private dwelling. However, this requirement is suspended in the emergency zones, where the security forces routinely conduct searches without such warrants. The Human Rights Ombudsman continued to receive complaints about incidents of forced conscription of young men, even minors, by units of the security forces carried out as part of the constitutionally mandated system of compulsory 2-year military service. Some of the reports told not only of beatings and other mistreatment but also of severe injury leading, in some cases, to murder or suicide. In a country where well-placed contacts and even bribes are used by middle-class families in order to avoid military service, forced conscription tends to target uneducated youth in remote areas. Although the Ombudsman repeatedly has raised the issue with the military authorities, they continue to deny that forced conscription is an official policy, while conceding that some local commanders may have acted illegally. According to the Center for the Study and Promotion of Peace, there was no known case of an allegation of forcible conscription and mistreatment in which the investigation has upheld the victim's complaint. In November legislation was enacted reiterating the prohibition against forced recruitment of youths. In addition, in order to monitor compliance more effectively and investigate violations, the Human Rights Ombudsman established a nationwide, toll-free telephone line for use by any citizen who may have been recruited forcibly or wished to report rumors of such a practice. However, despite the new legislation, in late November the military forcibly recruited a group of 16 youths in Piura. The Constitution also provides citizens with the right to private communication, but the media continued to report that the Government violated this right. In May the daily newspaper El Comercio accused the Government of tapping its telephones (see Section 2.a.). In March former SIE agent Luisa Margarita Zanatta Muedas, who had fled the country reportedly in search of political asylum, granted a number of television and newspaper interviews in which she gave credible accounts of the SIE wiretapping operation in which she had participated in 1997. Opposition Congresswoman Anel Townsend and 13 journalists who had been targeted by the wiretaps filed suit, charging that the Government had violated their constitutional right to privacy and seeking civil damages. In May the Constitutional Tribunal dismissed the suit, and in July, having exhausted all domestic remedies, Townsend and the journalists presented their case to the Inter-American Commission on Human Rights. In addition, the congressional Committee on Defense, Intelligence, and Internal Order, chaired by one of President Fujimori's loyalists, conducted a less than comprehensive investigation of the charges, which not only exonerated the intelligence services and security forces, but recommended that the aggrieved journalists be charged with having disseminated false information that had tainted the honor of the military. Prompted by the terrorism and banditry which characterized the internal conflict, a number of rural communities have organized their own self-defense units, or "rondas," which are often trained, armed, and encouraged by the regular security forces. However, some military commanders go beyond encouragement and, at times, coerce peasants into joining the rondas, thereby disrupting their home and family life. To a far greater degree, Sendero Luminoso and MRTA are known to have forced peasants to join their ranks and participate in terrorist attacks and executions, similarly disrupting their home and family life.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of speech and of the press; however, in practice, the Government limits these freedoms. The press practices a degree of self-censorship in order to avoid provoking government retribution. While the press represents a wide spectrum of opinion, ranging from left-leaning opposition views to those favoring the Government, the 1997 loss by television owner Baruch Ivcher of his station, and other cases in which the Government accused investigative journalists of treason demonstrate the limits of press freedom. In the greater Lima area alone, there are 16 daily newspapers, 7 television stations, 68 radio stations, and 2 commercial cable systems. The Government owns one daily newspaper, one television network, and two radio stations, none of which is particularly influential. Tensions continued during the year between the Government and the segment of the media that was very critical of certain government policies and actions, and whose investigative reporting has generated wide public criticism of alleged government wrongdoing. Government intelligence agents allegedly orchestrated a campaign of spurious attacks by the tabloid press against a handful of publishers and investigative journalists in the strongly pro-opposition daily La Republica and other print outlets and electronic media. During the year, these journalists, who write investigative pieces and columns and anchor television news programs, published news stories and editorials about allegedly corrupt military procurement practices and arms transactions, as well as about the military standoff on the Peru-Ecuador border. In front page banner headlines and in long inside page stories, four different newspapers repeatedly attacked the investigative reporters, labeling them traitors, Ecuadorian spies, and terrorist sympathizers. The similar language and writing style employed by all four tabloids made it appear as though a single entity were orchestrating the entire campaign of intimidation and defamation. In addition, the investigative reporters and their families were targets of telephoned death threats and other harassment. The investigative reporters admit that they or their editors held back some stories to avoid angering the regime and risking its retaliation. Some of these tabloid newspapers were established only recently and allegedly were financed and controlled by government security forces, which instigated the campaign in an attempt to prevent further negative stories about the military, whose sensitivity has been unusually high due to the tension along the Peru-Ecuador border. During the year, threats and harassment continued against Baruch Ivcher and some of his former journalists and administrative staff. Ivcher pursued and exhausted legal channels to regain control of his station and appealed to international organizations to help restore his rights (see Section 2.d.). In September Ivcher and several of his staff involved in his other nonmedia businesses were charged with customs fraud. The courts sentenced Ivcher in absentia to 12 years' imprisonment and his secretary to 3 years in prison. Other persons from his former television station, who resigned in protest in 1997 when the station was taken away, also have had various charges leveled against them and complain of telephone threats and surveillance by persons in unmarked cars. One such case of government pressure and intimidation involved Jose Arrieta, who headed the investigative unit at Ivcher's Channel 2, where he had reported on a variety of alleged human rights abuses by the intelligence services. The tax authorities conducted an audit of Arrietaâs tax return; he and his family began receiving death threats; and he himself was charged with pressuring an intelligence agent to provide false information to government investigators and with violating the public trust. As a result, Arrieta fled the country in January. In May the daily newspaper El Comercio charged the Government with tapping the telephones of its Sunday magazine section, after it received threats concerning an interview with former police captain Julio Salas, which it had not yet published. Salas had participated in the 1997 investigation of Channel 2 and accused other police officers of covering up their role in the investigation. The newspaper criticized the wiretapping as a government scare tactic designed to limit press freedom. In July the congressional Committee on Defense, Intelligence, and Internal Order completed its investigation of alleged wiretapping by government security forces, claiming that it had found no evidence to support the allegations (see Section 1.f.). In November in Yurimaguas, Loreto department, the MRTA terrorist group forced radio journalist Johnny Eduardo Pezo Tello to broadcast a letter from them, under threat of death to himself and his family. Even though Pezo clearly read the letter against his will, a provincial judge ordered his imprisonment on charges of sympathizing with terrorists. When 18 other local journalists wrote to the judge protesting such treatment, the judge charged them with obstruction of justice. Following complaints by national and international professional associations of journalists and legal representations by the Human Rights Ombudsman, the Superior Court ordered Pezo released after some 5 weeks in jail. Also in November, newly appointed Organization of American States Special Rapporteur on Press Freedom, Santiago Canton, accompanied the IACHR fact-finding mission to Peru. During his visit, Canton inaugurated a nationwide hot line for journalists who are threatened and seek immediate legal counsel and other assistance. In his own press statement at the conclusion of the mission, Canton called on the Government to cease all official harassment of journalists and to investigate and prosecute all abuses of freedom of speech and of the press. The Government respects academic freedom.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for the right of peaceful assembly, and the authorities generally respect this right in practice, except in the emergency zones where the right of assembly is suspended. Public gatherings in plazas or streets require advance permission which may be denied only for reasons of public safety or health. Municipal authorities usually granted permits for demonstrations in all nonemergency zones. From June through September, five protest rallies took place in central Lima, the first two largely consisting of university students who demonstrated against President Fujimori's measures inhibiting the democratic process and the Government's inability to provide enough jobs for young persons entering the labor market. During the first rally, the police beat and injured a number of the participating students, some shop windows were broken, and allegations were made that government intelligence agents took photographs of protesters. As a result, during the following rallies, observers representing the Human Rights Ombudsman were on hand to ensure an orderly and peaceful demonstration. The third and fourth rallies consisted of a more heterogeneous agglomeration of students, labor union members, retirees, and community activists. These later rallies coincided, respectively, with the delivery of petitions containing as many as 1.4 million signatures for a referendum on President Fujimori's reelection, and with the vote in Congress rejecting the referendum (see Section 3). On September 30, as many as 5,000 to 7,000 construction workers, teachers, students, retired persons, and other organized contingents demonstrated in Lima's central square to publicize their Citizens' Agreement for a Democratic Transition. This was a 30-point manifesto headed by demands for a complete prohibition of all attempts to reelect President Fujimori, for a total reform of the judiciary to ensure its independence, and for an end to the Government's neoliberal economic model and its replacement with policies more friendly to the poor. Some 200 demonstrators broke into the Presidential Palace, smashed windows, vandalized property, and looted weapons belonging to the presidential guard. The security forces responded with tear gas and fired some shots before the demonstrators were driven off the palace premises. The Government blamed the violence on the opposition, while the opposition charged the Government with deliberately provoking the violence in order to discredit legitimate dissent later. In October violent demonstrations took place in Iquitos in opposition to the Peru-Ecuador peace agreement. Prompted by nationalism and a regional resentment of the central Government, the Patriotic Front of Loreto started a riot on October 24, in which 6 persons died and over 20 persons were injured, and a mob of 1,000 persons burned down several government buildings. When the Patriotic Front called for further demonstrations and strikes to take place on November 25 and 26, the armed forces took over full control of Loreto department from November 24 to 30, in order to prevent any further loss of life or property. The Constitution provides for freedom of association, and the authorities generally respect this right.
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government generally respects this provision in practice. The Constitution recognizes the Catholic Church "as an important element in the historical, cultural, and moral development" of the nation, but also establishes the separation of church and state. Conversion to other religions is respected, and missionaries are allowed to enter the country and proselytize. Although teaching about Roman Catholicism has not been required in the public school system since the education reforms of the 1970's, most schools devote 1 hour a week to such study. Parents who do not wish their children to participate in these classes are expected to submit a written request for an exemption to the school principal. Non-Catholics who wish their children to receive a religious education in their own particular faith are free to organize such classes during the weekly hour allotted by the school for religious education, but must supply their own teacher. Sendero Luminoso rejects religion and has been known to threaten and intimidate religious workers. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation The Constitution provides for the right to free movement; however, this right is suspended in the emergency zones, which cover 16 percent of the country's territory and where the security forces may detain travelers at will. Nevertheless, the army generally does not hinder travel in these zones. Passengers on public transportation and drivers in private vehicles may be checked at control points throughout the country. Sendero Luminoso occasionally still interrupts the free movement of persons, and reports of its roadblocks in sections of the upper Huallaga Valley and in Ayacucho department were common. Although there are no political or legal constraints on foreign travel or emigration, the authorities can restrict persons with pending criminal and, in some cases, civil charges against them from leaving the country. Repatriates, both voluntary and involuntary, are not treated differently from other citizens. The Constitution prohibits the revocation of citizenship. However, according to the Nationality Law of 1996, naturalized Peruvians can lose their citizenship for, among other reasons, committing crimes against the State, national defense, and public security, as well as for reasons that "affect the public interest and the national interest." In 1997 the Government invalidated the naturalization of Israeli-born Baruch Ivcher, the majority owner of television station Channel 2, which persistently had carried stories of government abuse. Although the Government claimed that its decision was based on irregularities in Ivcher's original naturalization petition 13 years earlier, observers believe that it was the Nationality Law that provided the Government with the legal basis for the revocation. After challenging the withdrawal of his nationality and losing his case in the lower courts, Ivcher, who was out of the country throughout the legal process, took his case directly to the IACHR. In March the Commission declared Ivcher's case admissible; the Government challenged the finding of admissibility on the grounds that all domestic remedies had not yet been exhausted; and the Commission ruled against it. Nevertheless, Ivcher submitted a final appeal to the Constitutional Tribunal, which dismissed it in June. In December the Commission submitted its report to the Government but did not publicize its conclusions. As a result of the political violence which accompanied the internal conflict of the 1980's and early 1990's, several hundred thousand persons were displaced from their original homes, thereby creating serious socioeconomic problems which, for the most part, remain unsolved. The Government's Support Program for the Repopulation and Development of Emergency Zones (PAR) estimates the total number of internally displaced persons at some 600,000, while the National Roundtable on the Displacement of People Affected by Political Violence, an umbrella organization created in 1993 that coordinates the activities of 58 nongovernmental organizations (NGO's) that work with the internally displaced, estimates the number of inhabitants of rural areas and indigenous communities who were displaced at approximately 425,000. Roughly 80 percent of these may be found in and around Lima and a number of other major cities. However, besides this rural-to-urban displacement, there was substantial rural-to-rural migration, as well as many persons whose homes were destroyed and whose lives were disrupted, but who resisted the encroachment of terrorist groups by forming civilian self-defense committees and thereby managed to remain in their home communities. There is also a large population of indigenous Ashaninkas in the central jungle region who face not only a terrorist threat but the expansion onto their lands of certain oil exploration companies, which do not consult them in advance (see Section 5). While the PAR estimates the number of internally displaced persons who already have returned to their home communities at 350,000, the Roundtable claims that only some 68,000 have done so. However, both the PAR and the Roundtable are in agreement that only 15,000 so far have been assisted by the PAR in their return to their home communities. According to the Roundtable, as many as 15 to 20 percent of the returnees already have returned to their displacement homes, due to dissatisfaction with the arrangements that awaited them in their home communities. In addition, approximately 40 percent of the returnees have not reestablished themselves firmly in their communities of origin and tend to migrate back and forth between their original homes and displacement homes. The PAR tends to concentrate on infrastructure development in the communities to which displaced persons are destined to return, building roads, bridges, utility lines, schools, health centers, and the like. The PAR also provides returnees with an initial supply of agricultural tools, seeds, food, medicines, blankets, and kitchen utensils. The NGO's, on the other hand, focus on the training of the returnees in self-advocacy and on the development of vocational skills. The PAR provides no assistance to those displaced persons who chose not to return to their original communities. A special problem related to the displaced persons is the lack of basic documentation, such as birth certificates and voter registration cards. A second problem is the legal cloud over the estimated 5,000 displaced persons who also fall into the category of "requisitoriados," that is, persons who were forced to join terrorist groups or were falsely accused of associating with such groups and continue to have detention orders issued against them (see Section 1.d.). Most of these individuals speak only Quechua, a fact which increases their vulnerability and reduces even further their capacity for economic and social integration in urban areas. The law includes provisions for granting refugee and asylee status in accordance with the provisions of the 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol. The Government cooperates with the U.N. High Commissioner for Refugees in granting asylum and refugee status, and recognizes the Catholic Migration Commission as the official provider of technical assistance to refugees and applicants for asylum. There are 761 persons in the country with refugee status. These refugees are allowed to live and work normally while awaiting receipt of their permanent residency. The issue of the provision of first asylum did not arise in 1998. There were no reports of the forced return of persons to countries where they feared persecution.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
The Constitution provides for the right of citizens to change their government, although the law bars groups that advocate the violent overthrow of the Government from participating in the political process. Voting is by secret ballot and is mandatory for all citizens between the ages of 18 and 70. However, members of the armed forces and the police, as well as prisoners, are ineligible to vote. In accordance with provisions in the 1993 Constitution, President Fujimori ran for a second 5-year term in 1995, and was reelected over 12 other candidates, receiving 65 percent of the vote. Voters also elected the 120 members of the unicameral Congress; 69 seats are held by members of Fujimori's Cambio 90/Nueva Mayoria movement and the remaining 51 members represent 11 parties. The Elections Law of 1997 requires each of the participating political parties to prepare its national list of ranked candidates, and the 120 members of the unicameral legislature are elected from these party lists in proportion to the number of votes received by each party. In 1996 the congressional majority, faced with the constitutional provision limiting presidents to no more than two consecutive terms in office, passed a law interpreting President Fujimoriâs 1995 victory as his first under the new Constitution, thereby permitting him to run for a third consecutive term. The administrationâs attempt to maintain its hold on power created a constitutional crisis. In 1997 Congress removed three members of the Constitutional Tribunal who had voted against the interpretation allowing a third term, and the Tribunal ceased to function effectively, unable to rule on any constitutional issues for lack of a quorum. The three members of the Constitutional Tribunal filed a complaint with the IACHR, which the Commission found admissible. In December the press reported that the Commission had called on the Government to reinstate the three judges on the Tribunal and formally given the Government 60 days in which to comply with its recommendations. The controversy over President Fujimori's eligibility to seek reelection continued throughout the year. The undermining of the Constitutional Tribunal by congressional action was particularly significant in setting the stage for Fujimori's run for a third term in 2000. As many as 1.4 million signatures were gathered in a petition drive for a referendum on whether or not the law permitting Fujimori to run for a third consecutive term should be repealed. However, the National Board of Elections ruled that according to a 1996 law, the referendum could be held only if 48 members of Congress favored it, thereby reversing its earlier decision permitting the signature drive to proceed without congressional approval. On August 27, the referendum was effectively killed when only 45 members voted for it. Thus the right to a referendum, which is established in the Constitution, was abrogated by legislative action with no opportunity for judicial review. In October 1997, Congress appointed a subcommittee to investigate infiltration by the intelligence service of the voter registration agency, incompetence in contract administration, and massive embezzlement of funds. When the subcommittee produced a critical report, the Director of the National Voter Registration Bureau and a number of his senior staff fled the country in March. In a particularly egregious act of election-related manipulation in May, Congress altered the voting procedure on the National Board of Elections to favor a potential Fujimori candidacy. With two of the five seats on the Board already occupied by persons who could be relied on consistently to take pro-Fujimori positions, Congress raised the number of votes needed to approve challenges to specific candidacies from the previous simple majority of three to four, thereby ensuring that no challenge to a Fujimori candidacy was likely to succeed. Women and some minorities actively participate in government and politics, although they are underrepresented. There are 13 female members in the 120-seat Congress. In addition, 1 of 15 cabinet ministers and several vice ministers were women, as are 3 of the 33 judges of the Supreme Court. A nationwide drive was conducted to replace the citizenship papers and voter registration cards lost by women who were displaced by the internal conflict and who returned to their original communities in time for the 1998 municipal elections, as well as for the 2000 national elections. For the first time in the country's electoral history, the October municipal elections were held under the new law that mandated that all party candidate lists for congressional and municipal elections include at least 25 percent women and at least 25 percent men. In conjunction with the municipal election campaign, four womenâs organizations undertook nationwide programs to identify female candidates and promote womenâs lobbies, increase the number of female voters, prepare a womenâs political agenda, and train women who were elected to office. Peruvians of Asian descent hold leadership positions in government; President Fujimori is of Japanese descent and the president of the Council of Ministers is of Chinese descent. There is a substantial number of members of Congress with mixed ancestry, and a recent vice president was a Quechua speaker, as was a recent Minister of Transportation and Communications. However, it is rare for indigenous people, who make up 45 percent of the population, to reach the highest leadership ranks in the public sector. The black minority, unofficially estimated at 8 to 10 percent of the total population, is not represented at all in the leadership of any branch of the Government, and there are no blacks in the Congress.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
In general, the Government permitted numerous NGO's dedicated to monitoring and advancing human rights to operate freely. However, until September 10, the Minister of the Interior had denied the ICRC the opportunity to conduct interviews with detainees without witnesses present in DINCOTE detention cells in Lima (see Section 1.c.). Military commanders often limited the freedom of local and international human rights monitors to investigate abuses in the emergency zones. Government, military, judicial, and police officials, as well as some majority members of Congress, continued to criticize human rights groups for their alleged bias against the authorities and in favor of the "leftist guerrillas." Dialog between the nongovernmental human rights community and the authorities was almost nonexistent. However, as part of the celebration of the 50th anniversary of the Universal Declaration of Human Rights, government officials and NGO representatives shared the same platform at a number of events, including a congressionally sponsored celebration at which the Minister of Defense spoke, a first for such a high-level military figure. Most human rights NGO's are independent, thorough, and usually objective. In 1985 a number of them joined forces to form an umbrella organization, the National Coordinating Committee for Human Rights. The Coordinadora, which comprises some 50 member organizations, adheres strictly to a policy of not politicizing its positions on human rights issues, although its constituent members may do so in their own names. The Coordinadora is in the process of integrating its Lima-based and province-based member organizations into a more cohesive body so that it can be in a better position to act quickly and forcefully and to speak with a unified voice. Since Jorge Santistevan's appointment as the first Human Rights Ombudsman in 1996, his office has grown steadily in stature and is considered to be the most independent and effective force in the country for bringing citizens justice. The Ombudsman enjoys investigative independence, as well as the ability to inform the public of his conclusions and recommendations. However, he has no enforcement authority. Santistevan's achievements include the work of the Pardons Commission, which he chairs (see Section 1.e.); his recommendations regarding alleged abuses in the Government's family planning program (see Section 5); and the influence he has exerted on the Congress to repeal a number of laws and policies that discriminated against women (see Section 5). During the year, the U.N. Working Group on Arbitrary Detention, the International Federation of Human Rights, the U.N. Committee Against Torture, and the Inter-American Commission on Human Rights all made fact-finding visits. In all four cases, members of these groups were allowed ready access to prison facilities and were granted interviews with every government official they wished to meet. Although the Government had invited the IACHR, the mission received telephone death threats. In addition, Bishop of Ayacucho Juan Luis Cipriani, later named Archbishop of Lima, asserted that the IACHR would emphasize evidence of wrongdoing and abuse, rather than what he termed the authoritiesâ genuine respect for human rights. In a statement at the end of its visit, the IACHR noted the Governmentâs positive actions, e.g., the creation of the office of the Human Rights Ombudsman, the abolition of faceless judges, the classification of torture as a crime, and the overall improvement in the climate of security. However, the IACHR criticized the Government for its manipulation of the judicial and electoral systems and its intimidation of the press, which had resulted, it noted, in a judiciary lacking independence, in democratic institutions subservient to the interests of the executive, and in a press that practiced self-censorship due to fear of official retaliation (see Sections 1.e., 2.a., and 3). Specifically, the IACHR called on the Government to restore the power of the Constitutional Tribunal to rule on constitutional issues, to return to the National Judiciary Council the power to nominate and dismiss judges and prosecutors, and to cease the recurring practice of overruling, harassing, transferring, removing, and even prosecuting judges whose decisions did not coincide with the Governmentâs views. Legitimate fear of physical attack by Sendero Luminoso seriously hampered the ability of human rights monitors to carry out their work in some parts of the country. While they have documented human rights abuses by the security forces carefully, human rights groups have, at the same time, repeatedly named Sendero Luminoso as the principal violator of citizensâ rights. In both its annual reports and periodic press releases, the Coordinadora has criticized regularly the violence perpetrated by both Sendero Luminoso and MRTA.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution provides for equal rights for all citizens, and specifically prohibits discrimination based on ethnic origin, race, sex, language, religion, opinion, or economic condition. Nevertheless, discrimination against women, people with disabilities, indigenous people, and racial and ethnic minorities continued.
Violence against women, including rape, spousal abuse, and the physical and sexual abuse of women and girls, is a chronic problem, according to local human rights groups and law enforcement offices. Such abuses are aggravated by insensitivity on the part of law enforcement and judicial authorities toward female victims of abuse and by a media image of the traditional relationship between the sexes that encourages a controlling attitude by the husband toward his wife. Nationwide statistics on the extent of domestic violence are not available. However, in Lima, 6,294 cases of domestic violence were reported in 1996. Between 1990 and 1996, 32,030 cases were reported. Human rights organizations believe that, whether for fear of retaliation from the accused spouse, or because of the cost involved in pursuing a complaint, or for some other reason, a large number of domestic violence cases remain unreported. Although a basic statute criminalizing spousal abuse has existed since December 1993, significant improvements in the law were enacted in March 1997. These changes simplified the procedures for reporting cases of domestic violence, made the process less expensive, and broadened the judicial remedies available. The 1997 law gives not only judges but also prosecutors the power to protect a victim of domestic violence from further abuse by enjoining the convicted spouse or parent from returning to the family's home. In the past, when abusive spouses argued that their home was owned jointly by both husband and wife and that they therefore should be allowed to return to it, judges tended to let that argument outweigh the interest of the accused victim. The new law also expands the number of persons authorized to file complaints of domestic violence to include the victim's parents or grandparents, other relatives, and even other unrelated persons living in the home in which the violence was committed. Whereas previously victims of domestic violence had to have a specialist in legal medicine certify the presence of their injuries and to pay for the report themselves, the new law eliminates the required fee and stipulates that the report may be prepared by any health professional. Many women have complained that their charges of domestic violence were brushed aside with indifference by police officers who either did not understand the issue or wrongly assumed that complaints of spousal abuse could be filed only at one of the handful of "women's police stations" exclusively dedicated to processing charges of domestic violence. The new law clearly requires all police stations to receive such complaints. The Ministry of Women's Advancement and Human Development, in conjunction with a nongovernmental women's rights organization, has prepared a national program to sensitize police to the problem of domestic violence and to train officers at all police stations in the processing of domestic violence cases. According to the Human Rights Ombudsman, many rape victims have complained that court-appointed medical examiners inappropriately delved into their past sexual histories. They also accused judges of looking more favorably on rape victims who were virgins prior to the rape and of believing that a woman who was raped somehow must have enticed her attacker to commit the crime. In April 1997, Congress repealed a statute whereby convicted rapists could be absolved of their crime if they married their victim. The Human Rights Ombudsman appealed to Congress to amend the Criminal Code to provide greater protection to victims of sexual violence. The Ombudsman sought elimination of the provision in the Code that affords rapists and other sexual predators the opportunity to avoid prosecution if they reach a private settlement with their victims. In addition, the Ombudsman favored rescinding the provision that specifies that in cases of sexual abuse of victims over 14 years of age, only victims themselves may file a complaint. Many victims are afraid of personally filing a complaint of sexual abuse, particularly in cases where the perpetrators are police officers. In January the Human Rights Ombudsman published an initial report on allegations that first arose in October 1997 that a number of health workers in public hospitals and family planning clinics had induced female patients to opt for sterilization by promising them food or another type of good or service or by not providing them with complete information about the alternatives available. The Ombudsman recommended that all clients of the family planning program be provided with complete information about all the alternatives available to them, that no client be pressured into using any particular contraceptive method, and that, if sterilization is chosen, the patient be afforded a 72-hour waiting period during which to consider that option, prior to a final decision. Since only 10,000 men have been sterilized under the Ministry of Health's family planning program, compared with 130,000 women, the Ombudsman recommended that the Ministry integrate men fully into its family planning program, thereby disseminating reproductive and contraceptive information more equitably across gender boundaries. The Ministry of Health accepted the Ombudsman's report and already has implemented many of his recommendations. During the year, the Ombudsman's office received additional complaints of abuses committed by family planning personnel, raising the overall total to 159. These all are being investigated by special staff of the Ombudsman's office. The Constitution provides for equality between men and women, and the 1995 amendments to the Employment Promotion Law, as well as other laws relative to marriage, divorce, and property rights, prohibit discrimination against women. In 1997 Congress passed legislation that prohibited the inclusion in any announcement advertising employment or other educational training opportunities of any requirements that may be construed as discriminatory on the basis not only of sex but of race as well. Legislation in 1997 also repealed the old disqualification of unmarried or childless individuals for judgeships in the family courts. Since these positions have in the past been filled predominantly by female candidates, the legislation was regarded as broadening employment opportunities for single women. In May Congress passed legislation that stripped health-care professionals in police hospitals of their police rank and accorded them civilian status only. Since over 80 percent of such professionals are women, the Human Rights Ombudsman challenged the constitutionality of the new law and its implementing regulations, on grounds of discrimination. The Superior Court of Lima ruled against the Ombudsman, who then appealed the case to the Supreme Court. Traditional assumptions and misconceptions often impede access by women to leadership roles in both the public and private sectors. Because of societal prejudice and discrimination, women historically have suffered disproportionately from the country's pervasive poverty and unemployment. The government-supported "Mibanco" program represents an effort to improve women's ability to generate income by providing credit to small businesses started by enterprising women.
The Government provides free, compulsory education through secondary school. However, 5.7 percent of children between the ages of 6 and 12, and 17 percent of adolescents aged 12 to 17, either have never attended school or have abandoned their education. Among children and adolescents who live in poverty or extreme poverty, the corresponding figures are 16 percent and 43 percent, respectively. School nonattendance is highest in rural and jungle areas, and affects girls more than boys. In April Congress amended the Child and Adolescent Code to provide pregnant school-age girls with the right to begin or continue attending school. Previously, many school principals did not permit girls to pursue their studies if they became pregnant. The Ministry of Women's Advancement and Human Development has a Children's Bureau which coordinates child- and adolescent-related policies and programs throughout the Government. In the nongovernmental sector, the National Initiative on the Rights of the Child is the largest NGO of its kind and coordinates the work of 27 Lima-based and province-based groups concerned with the problems of children. At the grassroots level, 1,010 Children's Rights and Welfare Protection Offices receive and resolve complaints ranging from physical and sexual abuse to child support, abandonment, and undetermined guardianship. Some 55 percent of these offices are operated by provincial or district governments, while the remaining 45 percent are operated by schools, churches, and a variety of other community-based NGO's. Most of the units are staffed by law students; only the offices in the wealthiest districts of the country have professionally trained lawyers, psychologists, and social workers. Cases that cannot be resolved by these offices typically are referred to the local prosecutors' offices of the Public Ministry. Nationwide, these offices received and resolved 20,000 cases in 1996. In December Congress enacted new legislation that provides that settlements adjudicated by these Childrenâs Rights and Welfare Protection Offices are legally binding and have the force of judgments entered by a court of law. Violence against children and the sexual abuse of children continued to be serious problems. It is estimated that only 10 to 20 percent of incidents of such mistreatment and abuse are reported, since many persons believe that problems of this kind belong within the family and should be resolved privately. Even so, in Lima alone, 400 rapes of minors are reported annually. In 1996 there were 219,000 orphans in the country, of whom 25,000 were orphaned for reasons related to political violence. There were continuing reports of beatings and other mistreatment of adolescents on army bases, in connection with the forcible conscription of youngsters for military service (see Section 1.f.). According to recent statistics, 55 percent of all children and adolescents under 18 years of age live under the poverty line. Of these, two-thirds live in rural and jungle areas. Of all children and adolescents under 18 years of age, 26 percent live in extreme poverty. As many as 62 percent of all children and adolescents live in unhealthy environments, the majority of them in rural and jungle areas. In 1996 the infant mortality rate was 43 per 1,000, down from 70 per 1,000 in 1992. However, this figure masks wide regional disparities: 35 per 1,000 in urban areas, compared with 71 per 1,000 in rural areas. Twenty-six percent of children under age 5, and 48 percent of children ages 6 to 9, suffered from chronic malnutrition. The higher statistic for the older children is due to the fact that those children were born during a time of extreme economic hardship. In those homes where the mother has a low level of education, as many as 50 percent of the children suffer from chronic malnutrition and 114 per 1,000 die from preventable causes before they reach age 5. Street crime committed by children and adolescents is extremely high. It takes the form of robbery, physical assault, and vandalism, and is often carried out by gangs. According to a congressional commission which investigated the causes of crime, such gangs carry out 75 percent of all acts of vandalism, 29 percent of assaults, and 23 percent of robberies. The majority of these crimes are committed under the influence of drugs and alcohol, and their underlying causes are unemployment, non-attendance at school, and conflicted family relationships. Human rights groups concerned with the protection and welfare of children and adolescents called on the Government to repeal the measures it decreed in May, which made it possible for 16- to 18-year-old criminal gang members to be tried in military courts and be sentenced to no less than 25 years in adult prisons. As many as 1.2 million children work to help support their families. Of this total, some 500,000 are under the age of 14, while 700,000 are between the ages of 15 and 17. Normally, there are sharp increases in these figures during school vacations (see Section 6.d.).
People With Disabilities
The Constitution provides that severely disabled persons have "the right to have their dignity respected and to be provided by law with protection, care, rehabilitation, and security." At yearâs end, the President signed into law new comprehensive legislation that established the National Council for the Integration of People with Disabilities and specified the rights, allowances, programs, and services that are ensured for the disabled. Among other provisions, the statute prohibits discrimination, mandates that public spaces be barrier-free and that buildings be architecturally accessible, and provides for the appointment of a specialist in disability rights in the office of the Human Rights Ombudsman. Nevertheless, in practice, the Government devotes little attention to the disabled: in December an international conference on the needs of the disabled was held in Lima, but not a single high-ranking government official chose to address it. Nor does the Government allocate sufficient funds to make genuine integration of the disabled into the economy actually possible. Although the new legislation prohibits discrimination in the workplace, it is vague regarding the source of funds required to pay for the human assistance, technological support, and environmental adaptations that often are necessary to enable disabled workers to be productive. As a result, disabled individuals and the private agencies serving them generally must rely on the publicâs charity and on funding from international organizations. The 1993 census counted 288,526 disabled persons, or 1.3 percent of the population. However, the Ministry of Health and the Pan American Health Organization believe that the vast majority of disabled persons either do not wish to acknowledge their disability to census takers or do not know what constitutes a disability, and that the actual number of disabled persons within the population could be as high as 3 million, or 13.8 percent. The Government, in conjunction with the country's hospitals, plans to implement a national register of disabled persons. Since the privatization of the social security and national health insurance systems, it has been difficult for many disabled persons to obtain coverage because insurance carriers typically believe that a severe disability necessarily increases a person's vulnerability to accidents and illnesses. Although construction regulations have long mandated barrier-free access by persons with physical disabilities to buildings in which services to the public are located, no effort has been made to implement this provision. Nor do accommodations exist, such as accessible polling stations, interpreters for the deaf in government service offices, and Braille or recorded versions of the Constitution, which would permit the disabled to participate in the basic processes of democracy and citizenship. According to officials of the Institute for Social Security, fewer than 1 percent of severely disabled citizens actually work. Among those who do, many have been channeled into a restricted number of occupations traditionally assumed to be "suitable" for the disabled, such as telephone switchboard operation and massage, in the case of the blind. However, some progressive programs do exist: two leading supermarket chains have initiated the employment of mentally retarded adolescents and young adults; Lima's Center for Rehabilitation of the Blind and the St. Francis School for the Blind have pioneered the training of the blind in computer-related skills; and the Foundation for Supportive Development provides low-interest loans averaging $500 each to disabled persons who wish to start their own businesses. Nevertheless, in general, even well-qualified disabled persons face serious discrimination by potential employers. For example, the basic statute governing the policies and procedures of the judicial branch specifically prohibits the blind from serving as judges or prosecutors, a discriminatory provision that the National Judiciary Council has interpreted to apply to all persons with disabilities. In addition, SEDAPAL, Lima's water utility, dismissed all its blind switchboard operators, ostensibly as part of a nondiscriminatory, across-the-board cost-cutting measure. However, the chief advocate for the disabled in Congress reports that all the blind operators immediately were replaced by younger, sighted recruits. People with disabilities only recently have begun to organize and demand equal rights and opportunities as a minority. Indigenous People The Constitution prohibits discrimination based on race and provides for the right of all citizens to speak their native language. Nevertheless, the large indigenous population faces pervasive discrimination and social prejudice. Many factors impede the ability of indigenous people to participate in, and facilitate their deliberate exclusion from, decisionmaking directly affecting their lands, culture, traditions, and the allocation of natural resources. According to indigenous rights groups, the provisions in the 1993 Constitution and in subsequent implementing legislation regarding the treatment of native lands are less explicit about their inalienability and unmarketability than were earlier constitutional and statutory protections. Pervasive discrimination and social prejudice intensify feelings of inferiority and second-class citizenship. Many indigenous people lack such basic documents as a birth certificate or a voter's registration card that would normally identify them as full citizens and enable them to play their part in society. The native population of the Peruvian Amazon, which the Government estimates at a little under 200,000 and organizations representing the native communities estimate at between 200,000 and 300,000, faces pervasive discrimination and social prejudice. In accordance with local culture and traditions, most of the native communities have a spiritual relationship with their land, and the concept of land as a marketable commodity is alien to them. Nevertheless, according to the Director of the Human Rights Ombudsmanâs Native Communities Program, the only right still statutorily set aside for this native population with respect to its land is that of "unassignability," which prevents the title to such lands from being reassigned to some nonindigenous tenant, simply because that tenant happens to have lived on those lands for a substantial amount of time. On the other hand, the marketing and outright sale of the lands are no longer prohibited. In addition, many other factors have contributed to the marginalization of indigenous people in society. Poor transportation and communications infrastructure in the highlands and in the Amazon jungle region makes political mobilization and organization difficult. The geographic isolation of much of the indigenous population and the centralization of government action in Lima further marginalize indigenous people. Peruvians of Indian descent, who live in the Andean highlands, speak Aymara and Quechua, which are recognized as official languages. They are also ethnically distinct from the diverse indigenous groups who live on the eastern side of the Andes and in the tropical lowlands adjacent to the Amazon basin. Recent regulations that require all school teachers to have professional teaching certification caused many indigenous teachers to lose their jobs and be replaced by teachers who are professionally certified but who do not speak any of the local languages. As a result, the continued use of Aymara and Quechua as languages of instruction, as well as the very survival of indigenous cultures, has been put in jeopardy. In many jungle areas, encroachment on native lands can come from a variety of sources--colonists and coca growers in search of livelihood and profit, terrorists in search of new bases of operation, and business interests in search of exploitable natural resources continue to encroach upon native lands. For example, there are approximately 25 oil exploration fields in the Amazon region. The 45,000 Aguaruna and the 5,000 Huambisa people, who inhabit the frontier area where the 1995 Peru-Ecuador border conflict took place, are just two of many indigenous groups that complain about intolerable living conditions and inaccessible public services. In the same region, along the Pastaza River, the 4,700 Achuar people live in 36 communities, only 12 of which have title to their land. In addition, the Achuar are fighting what they fear may be a losing battle against an incursion by oil exploration and drilling interests, as well as against a government-sponsored influx of colonists. Such encroachment can often damage the environment and negatively affect the health of the native people. The two main organizations that represent the interests of the native population of the Peruvian Amazon are the Inter-Ethnic Association for the Development of the Peruvian Jungle (AIDESEP) and the Confederation of Amazonian Nationalities of Peru (CONAP). Both organizations have recently joined the Permanent Conference of Indigenous Peoples, an umbrella body designed to coordinate the activities and unify the voice of the countryâs indigenous population. Both AIDESEP and CONAP are critical of the 1995 land law, which permits Amazonian land to be bought and sold if no one is living on it or otherwise making use of it. However, CONAP believes that mining and other development operations are inevitable and, therefore, wants native communities to share appropriately the benefits of that development. AIDESEP, on the other hand, remains opposed to territorial encroachments by government, commercial, and other interests. Although indigenous rights advocates protest the low priority assigned by the Government to the socioeconomic condition of indigenous people and the lack of consultation regarding matters affecting their welfare, the Human Rights Ombudsman believes that a significant change has taken place in the attitude of the authorities. In November the Government established an Indigenous Affairs Commission for the purpose of coordinating all available state services to meet the needs of indigenous people. The Commission, which is chaired by the Ministry of Womenâs Advancement and Human Development, has among its members officials from a variety of relevant ministries as well as four representatives of the Indian peasant population in the highland and coastal areas and the native population of the Amazon jungle. Sendero Luminoso continued to be a leading violator of the rights of indigenous people. It recently concentrated its abuse of this population in the area between Cutivireni, in Junin department, and San Francisco, in Ayacucho department. By encroaching upon these territories and threatening their inhabitants with death if they do not join their ranks, Sendero Luminoso caused the residents of many indigenous communities to flee, thereby intensifying the problem of internal displacement. In addition, there were continued reports of enforced recruitment of Ashaninkas by Sendero Luminoso.
The population includes several racial minorities, the largest of which are persons of Asian and African descent. Blacks, who tend to be concentrated along the coast, often face discrimination and social prejudice, and are among the poorest groups in the country. Blacks do not hold leadership positions in government, business, or the military. Both the navy and the air force are widely believed to follow unstated policies that exclude blacks from the officer corps. The law prohibits employment advertisements in newspapers from specifying the color of the candidates sought, but employers often find discreet ways to relegate blacks to low-paying service jobs. In March the Commission on Consumer Protection of the National Institute for the Defense of Free Market Competition and the Protection of Intellectual Property (INDECOPI) began to investigate complaints alleging various forms of discrimination by retail establishments against prospective customers. When in response to complaints by prospective black patrons, the Commission ordered two all-night discos in Lima to cease excluding would-be customers on the basis of their race, the discos took their case to the courts, arguing that they were private clubs and could exclude whomever they wished. When the courts upheld the discosâ position, INDECOPI proposed to Congress strong antidiscrimination legislation, which was approved and signed into law. The new statute provides that no consumer may be discriminated against on the basis of race, gender, socioeconomic level, language, disability, political affiliation, religious belief, or any other ground, by places of business that are open to the public. However, this legislation did not significantly deter discriminatory practices. According to two black human rights organizations, police routinely detain persons of African descent on suspicion of having committed crimes, for no other reason than the color of their skin, and rarely act on complaints of crimes against blacks. Blacks are unflatteringly portrayed in television comedies as individuals of questionable character. Although Peruvians of Asian descent historically have suffered discrimination, their social standing has improved markedly during the past decade, as Peru has sought to emulate Asia's earlier economic growth, and as the Asian community has achieved financial success. Besides President Fujimori, who is of Japanese descent, many other Peruvians of Asian descent hold leadership positions in business and government.
Section 6 Worker Rights
a. The Right of Association
It is estimated that only 5 percent of the total work force of 8.5 million belong to organized labor unions. More than half of all workers are in the informal sector of the economy. Workers are not required to seek authorization prior to forming a trade union, nor can employers legally condition employment on union membership or nonmembership. However, labor rights advocates claim that many workers are reluctant to organize for fear of dismissal. Unions represent a cross section of political opinion. Although some unions traditionally have been associated with political groups, the law prohibits unions from engaging in explicitly political, religious, or profitmaking activities. The several union leaders who ran unsuccessfully for Congress in 1995 all did so in their own names, without official union sponsorship. Nevertheless, it is believed that some union activists who run for public office receive unofficial backing from their unions. In 1995 and 1996, Congress passed legislation amending the 1992 Employment Promotion Law, which all the main union confederations publicly criticized for restricting the rights of workers, including the freedom to bargain collectively. Unions also complained that the new legislation eliminated the right of dismissed workers to compulsory reinstatement, if it was proven that they had been unjustly dismissed. In practice, the legislation has had a negative impact on the right of association by making it easier for companies to fire workers involved in union activities. There are no restrictions on the affiliation of labor unions with international bodies. Several major unions and labor confederations belong to international labor organizations such as the International Confederation of Free Trade Unions, its international trade secretariats, and regional bodies.
b. The Right to Organize and Bargain Collectively
The Constitution recognizes the right of public and private sector workers to organize and bargain collectively. However, it states that this right must be exercised in harmony with broader social objectives. Labor regulations promulgated prior to adoption of the 1993 Constitution provide that workers may form unions on the basis of their occupation, employer affiliation, or geographic territory. However, the regulations prohibit temporary, probationary, apprentice, and management employees from union membership. According to the regulations, union officials must be active members of their union, although they set limits on the number of individuals each union may designate as "official" and on the amount of time officials may devote to union business on company time. No legal provisions exist requiring employers to reinstate workers who are found to have been unjustly fired for union activities. To become an official collective bargaining representative, a union must represent at least 20 workers. Labor regulations stipulate that representatives may participate in collective bargaining negotiations and establish negotiating timetables. Management negotiating teams cannot exceed the size of union teams, and both sides are permitted to have attorneys and technical experts present as advisers. For a strike to take place, a majority of all workers in a company, whether union members or not, must approve it by a secret ballot. A second vote must be taken, if petitioned by at least 20 percent of the workers. However, labor rights advocates complain that many temporary workers are understandably reluctant to participate even in secret ballots, for fear of retaliation by their employers. The labor movement has criticized provisions in the new amendments to the Employment Promotion Law that make it easier for employers to dismiss employees and thereby to impede the right of workers to bargain collectively. However, there are no legal restrictions preventing unions from negotiating for higher levels of worker protection than the baseline standards provided for by law. Labor regulations also permit companies unilaterally to propose temporary changes in work schedules, conditions, and wages, and to suspend collective bargaining agreements for up to 90 days, if obliged to do so by worsening economic circumstances or other unexpected negative developments, provided they give their employees at least 15 days' notice of such changes. However, labor rights advocates allege that, in practice, few employers respected this provision. If workers reject an employer's proposed changes, the Ministry of Labor is required to resolve the dispute based on criteria of "reasonableness" and "economic necessity." Whether the changes proposed by employers in such instances are upheld in full or in part, employers are required to adopt all possible measures, such as the authorization of extra vacation time, in order to minimize the negative economic impact on their employees. Although a conciliation and arbitration system exists to resolve management and labor disputes, union officials complain that their proportionate share of the costs of arbitration often exceeds their resources. In addition, union officials claim that, since the law prohibits temporary workers from participating in union organizing elections, more and more companies have resorted to hiring workers on temporary, personal-services contracts as a means of preventing a possible increase in union strength. Although the new legislation restricts the number of temporary workers hired to 20 percent of a company's work force, labor rights advocates alleged that this quota rarely was respected. Employers denied that they are biased against unions, arguing that the labor-stability provisions of the legislation have made long-term commitments to workers too expensive. Special regulations aimed at giving employers in export-processing and duty-free zones a freer hand in the application of the new legislation provide for the use of temporary labor as needed, for greater flexibility in labor contracts, and for setting wage rates based on supply and demand. Although, as a result, workers in such zones have difficulty in unionizing, labor rights advocates admit that these zones are few in number and do not contribute substantively to labor's unionizing difficulties.
c. Prohibition of Forced or Compulsory Labor
The Constitution prohibits forced or compulsory labor; however, there are periodic reports of this practice in remote Andean mountain and Amazonian jungle regions. In response to a complaint filed with the ILO, the Government acknowledged in 1994 that forced labor exists but stated that it had adopted measures to end the abuses. The Constitution does not prohibit specifically forced or bonded labor by children, and there were reports of such labor in the informal gold mines of Madre de Dios department. The Government has not adequately policed this practice, partly because of inadequate funding for what is regarded as a low priority, and partly because of the geographical remoteness of the informal gold mining region (see Section 6.d.). There is no forced labor in urban areas. In recent months, the number of children and adolescents working in extremely harsh conditions in the informal gold mining operations of Madre de Dios department has declined, primarily because the use of modern mining technology has eliminated the need for them. However, those young laborers who still perform this work are typically pressed into service through a recruitment system known as "enganche," which is practiced in Puno, Juliaca, Sicuani, and Cuzco. Under this system, they are provided free transportation to the mines, and allegedly agree to work for at least 90 days before being paid. In addition, these workers lack proper medical care, are forced to work long hours, often are subjected to beatings and rape, and at times are deprived of their pay altogether. The Government has not exercised due supervision over this child labor system, and the mine owners have failed to comply with the legal provisions that do exist with respect to juvenile workers.
d. Status of Child Labor Practices and Minimum Age for Employment
The Child and Adolescent Code of 1992 is the statute which governs child and adolescent labor practices. The legal minimum age for employment is 12. However, in certain sectors of the economy, higher minimums are in force: 14 in agricultural work; 15 in industrial, commercial, or mining work; and 16 in the fishing industry. Certain types of employment are prohibited, such as work underground; work that involves the lifting and carrying of heavy weights; work where the child or adolescent is responsible for the safety of others; night work; or any work that jeopardizes the health of children and adolescents, puts at risk their physical, mental, and emotional development, and prevents their regular attendance at school. The Constitution provides for compulsory, free education through secondary school. Nevertheless, largely because of widespread poverty, approximately one-third of all school-age children and adolescents work during daytime hours rather than attend classes, and only a few of them attend classes at night. Many children are pressed to help support their families from a very early age by working in the informal economy, which escapes government supervision of wages and working conditions. Other children and adolescents work either in formally established enterprises, or as unpaid workers at home, or in the sex trade. Adolescent workers must be authorized to work and must be registered unless they are employed as domestic workers or as unpaid family workers. Adolescents only may work a certain number of hours each day: 4 hours for ages 12 through 14, and 6 hours for ages 15 through 17. Adolescent employment must be remunerated in accordance with the principle of equal pay for equal work. In practice, the stipulations and prohibitions stated in the Child and Adolescent Code are violated routinely and pervasively, especially in the informal sector where government standards very rarely are enforced. Forty percent of child and adolescent laborers work long hours in the agricultural sector. Many other children are employed in dangerous occupations or in high-risk environments, such as gold mining, garbage collection, loading and unloading produce in markets and brickmaking, or in stone quarries and fireworks factories, among others. In recent years, government surveys have variously estimated the number of child and adolescent workers at anywhere from 500,000 to 1.9 million. A 1996 government study found that 8 percent of the work force is between the ages of 6 and 14 (see Section 5). Child and adolescent labor tends to be seasonal, with the highest survey statistics being reported during school vacation periods. The Constitution does not prohibit specifically forced or bonded labor and children, and there were reports that it occurred (see Section 6.d.).
e. Acceptable Conditions of Work
The Constitution provides that the State promote social and economic progress and occupational education. It states that workers should receive a "just and sufficient" wage to be determined by the Government in consultation with labor and business representatives, as well as "adequate protection against arbitrary dismissal." On July 28, 1997, the Government raised the statutory minimum wage to $104 (345 soles) a month. It generally is considered to be inadequate to provide a decent standard of living for a worker and family. According to some estimates, as much as half the work force earns the minimum wage or below. The Constitution also provides for a 48-hour workweek, a weekly day of rest, and an annual vacation. In addition, it prohibits discrimination in the workplace. While occupational health and safety standards exist, the Government lacks the resources to monitor firms or enforce compliance. In cases of industrial accidents, the level of compensation awarded to the injured employee usually is determined by agreement between the employer and the individual involved. In 1992 the Government introduced reforms that eliminated the need to prove an employer's culpability in order to obtain compensation for work-related injuries. No provisions exist in law for workers to remove themselves from potentially dangerous work situations without jeopardizing their continued employment.