Peru Grants Transfer of U.S. Citizen Convicted of Terrorism from Prison to House Arrest But Might Deport Her

Renee Dopplick
International Law Blog Postings
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A Peruvian judge approved early release to house arrest for a U.S. citizen jailed since 1995 on terrorism charges of unlawful collaboration with the Marxist-Leninist Túpac Amaru Resistance Movement (MRTA) rebels during Fujimori’s Presidency. Judge Maria Jessica León Yarango of the First Supra-Provincial Criminal Court of the Superior Court of Justice of Lima ordered Lori Berenson’s release to house arrest from the Santa Mónica Prison in the Chorrillos District in Lima, subject to several conditions, including that she neither leave Peru nor contact or visit inmates still in prison on terrorism charges. Upon her release from prison today, she hugged her estranged husband Anibal Apari, a former MRTA rebel who serves as her lawyer. According to her parents, Berenson and Apari are legally separated, and Berenson will be a single mom raising their 1-year-old son.

Berenson, originally sentenced to life imprisonment by a hooded military tribunal for violating anti-terrorism Decree-Laws 25475 (terrorism) and 25659 (treason) imposed by then-President Fujimori, has served almost 15 years of a 20-year sentence imposed at her retrial in a civilian court. The Peruvian Supreme Court affirmed her 20-year sentence by a 4-1 decision on February 13, 2002, as did the Inter-American Court of Human Rights on November 25, 2004 (judgement in Spanish).

Her conditional release to live in Miraflores, an upscale tourist district of Lima, however, has been greeted with concern by nearby businesses and residents who worry about post-release supervision and public safety, according to Peruvian media. Anti-terrorism prosecutor Julio Galindo is quoted in one news article as asserting that Berenson remains “aggressive and intolerant” and has a likelihood of resuming terrorist activities, perhaps clandestinely, if released. Peru’s President Alan Garcia, former Justice Minister Aurelio Pastor, and the former president of the Superior Court Marcos Ibazeta, who rendered Berenson’s 20-year sentence in 2002, are quoted in yesterday’s media questioning whether Berenson, a convicted terrorist who has not made a public declaration of remorse, should have been granted parole. President Garcia called the law, President Decree 927, allowing her early release a mistake, but he expressed respect for the judicial decision and the independence of the judiciary.

Today, Justice Minister Victor Oscar Shiyin García Toma, the former head of Peru’s Constitutional Court and a former dean of the Law School at the University of Lima, posted his proposed legal solution of an Executive expulsion of Berenson on the Ministry’s website. If President Garcia would commute her sentence, she could be immediately deported. Minister García Toma said the President’s Council of Ministers will consider this legal option next week, adding that he has not yet raised the issue with President Garcia, who is scheduled to meet with President Obama in the White House on June 1 to discuss bilateral and global issues.

The controversy over the conditional release of a convicted terrorist, particularly when that person is a non-citizen who poses a potential national security risk, has stirred debate not unique to Peru. Should convicted terrorists be allowed parole or supervised release? Should the sentences of convicted terrorists be commuted if this allows potential non-citizen security risks to be expelled from the country? How should domestic criminal laws on terrorism and their enforcement be constructed to ensure legal predictability, fairness, and procedural safeguards as consistent with domestic and international political, social, and legal principles?

Presidential Decree 927 – Parole for Convicted Terrorists

Presidential Decree 927, enacted by then-President Alejandro Toledo in 2003, allows for remissions for work and education and parole for convicted terrorists. Its intended purpose, in part, was to promote good behavior by the MRTA and Shining Path rebels in overwhelmed prisons. Its legal authority derives from Congressional Law No. 27.913, which empowered the Executive Branch to define and regulate criminal enforcement of terrorism crimes, as consistent with the criteria identified by Peru’s Constitutional Court in the landmark case Marcelino Tineo et al. (Case No. 010-2002-AI-TC). In Tineo, the Constitutional Court questioned the legality of prosecuting civilians in a military tribunal or by military judges. The Constitutional Court declared unconstitutional the crime of treason against the state as defined by Fujimori in Law-Decree 25.659.

The Peruvian Congress repealed Decree 927 by Law 29.423 on October 14, 2009, thereby reinstating a prohibition on parole for terrorists.

Decree 927 – Article 6 – Rules of Conduct and Conditions of Parole (my unofficial translation)

The Criminal Court Judge may grant parole from prison given that the person shall be released with a ban from leaving country and according to the following rules of conduct and conditions:

1. Prohibition of frequenting houses, indoor places, and areas open to the public that are related to, or associated with, those who carry out terrorist activities, propaganda related to such activities, or any other conduct by terrorist organizations or entities engaged in terrorism or in cooperation with terrorism organizations.

2. Ban on visits to prisoners convicted of the crime of terrorism or the establishment of contacts with them in any form of communication, except in the case of descendants, spouse, or partner released from prison.

3. No contact or communication with people who participate, act in service with, or collaborate with terrorist organizations or groups or [requisitoriados?] or who have been convicted of terrorist crimes.

4. No contact or communication by any means with other people or institutions engaged in financing activities abroad and/or propaganda to persons or organizations engaged in terrorist activity, including by email, the use of internet web pages, among others, by sending and reception.

5. The obligation not to leave the location where the person lives and not to move addresses, unless given prior judicial authorization, and must communicate any such changes to the respective prison authorities.

6. Mandatory personal appearances before the prison authorities, and failing that, to the Joint Criminal Judge or closest address, to inform and justify the person’s activities. The frequency will be established in the decision granting parole.

7. Prohibition of carrying or having available weapons, ammunition, supplies, or elements for explosives or explosive devices, including those to build or renovate radio communications, plans, drawings, information from public, private, or diplomatic missions, lists of public figures or officials, or manifests associated with terrorist activity or people or associated groups or intended to secure the release of inmates convicted of terrorism.

8. Cannot commit a new criminal offense.

9. Subject to compliance with a [post-release / conditional liberty] treatment program [rehabilitation?] imposed by the respective prison authorities.

10. Other duties as the Court deems appropriate to the social rehabilitation of the person, provided that such duties do not impair the person’s dignity.

Background on Lori Berenson’s Case

U.S. citizen Lori Berenson, a former MIT student from New York, left school in 1989 to travel to Central America. She arrived in Peru in 1994 after living in El Salvador where she worked as a secretary to “Leonel González,” the assumed name of one of the leaders of El Salvador’s rebel force, known as the Farabundo Marti National Liberation Front (FMLN). He testified that she had no involvement with the FMLN’s military operations, according to a Associated Press story on March 22, 2001. He also stated that she worked in the group’s Washington, D.C. office in the 1980s and served as his aide during meetings in the United States, Mexico, and Central America. González’s real name is Salvador Sanchez Ceren, and he currently serves as the Vice President of El Salvador. Bereson’s 1-year-old son, Salvador, is said to be named after him. Berenson also spent time in neighboring Nicaragua and Panama before traveling to Peru. In Peru, she said that she worked as a free-lance journalist for Modern Times and Third World Viewpoint.

She was arrested on November 30, 1995, upon leaving Peru’s Congress in the historical district of Lima and in the company of Nancy Gilvonio, the wife of the MRTA leader Nestor Cerpa. The next day, police stated that they stopped a planned attack on Congress. Berenson was charged with collaborating with the Marxist Túpac Amaru Resistance Movement (MRTA) rebels in that plot to attack and seize the democratically elected Peruvian Congress. Purportedly, Congressional hostages were to be exchanged for the release of imprisoned or detained MRTA rebels. Prosecutors contended that Berenson and Gilvonio were conducting pre-attack surveillance to identify security systems and to gather information in preparation for the assault. Prosecutors also argued that she assisted the MRTA rebels with housing, electronics, and logistics. Berenson was 26 years of age at the time of the facts.

Berenson maintains that she is a political prisoner and advocate of social justice, not a terrorist. Many Peruvians still remember her angry outburst at a press presentation on January 8, 1996 when she stated emphatically: “There are no criminal terrorists in the MRTA. It is a revolutionary movement.” For archived video footage of her statement and her prior trials, see FrecuenciaLatina.com.pe (in Spanish. It begins and ends with her outburst.) An FAQ on FreeLori.org, an advocacy website for her innocence and associated with her family, states: “This statement was offensive to many Peruvians who have suffered through years of fear and terrorism, but it was not an admission of affiliation or guilt, simply an expressed opinion, however unpopular.”

‘Faceless’ Military Tribunal: Conviction and Sentencing to Life Imprisonment

A ‘faceless’ military tribunal found Berenson guilty of violating Peru’s 1992 anti-terrorism law. Specifically, she was convicted for violations of Presidential Decree-Laws 25475 (terrorism) and 25659 (treason). For her crime of high treason, she was sentenced to life imprisonment in Yanamayo Prison, a Peruvian jail at 3,870 meters (12,700 feet) above sea level.

The military tribunal did not provide her a reasonable opportunity to question evidence, introduce her own evidence, or interview witnesses. Military tribunals differ from civilian tribunals in that the standard of admission for evidence is generally lower and military tribunals can be held in secret. The MIT newspaper reported a spokesperson for the Peruvian embassy as characterizing the use of a military tribunal, rather than a civilian tribunal, as “within the boundaries of contemporary international law.”

1992 Anti-terrorist Law – Presidential Decree Law 25.475
Former Peruvian President Fujimori issued Decree Law 25.475 in June 1992 to establish what constitutes terrorism, the procedures for the investigation, and the sentencing guidelines. The decree altered the legal standard of terrorism with broad and vague language such that “any other means able to cause” public disturbance could constitute terrorism. Moreover, the decree denied the accused any benefits granted by the penal code. Conviction on terrorism charges imposed a mandatory twenty year minimum sentence and a mandatory life imprisonment for rebel leaders. Collaborators also received a mandatory twenty year minimum sentence. Under article 20, the first one-year period of confinement required complete isolation in a closed cell without any visits or any time outside the cell. Even lawyers did not escape the authoritarian wrath; they faced explicit limitations under article 18.

Decree Law 25.475 – Article 2 – Unofficial Translation
[Description of terrorism] The person who causes, creates or maintains alarm or fear in the population or a sector of it; makes acts against the personal life, body, health, freedom and security of the patrimony or the security of public buildings, transport routes or mass media of any nature, energy towers, transmission towers, power-plants or any other service, using explosive armaments, matters or devices or any other means able to cause damage or burdens disturbance of the public tranquility or to affect the international relations or the security of the society and the State; that person will be sentenced with a minimum detention of twenty years.

(Emphasis added)
El artículo 2.º del Decreto Ley N.º 25475

1992 Treason Law – Presidential Decree Law 25.659 – Unconstitutional
Under Decree Law 25.659, all cases of treason were to be tried by military courts, even if the accused was a civilian. The law permitted the judges and prosecutors to conceal their identities during trial through the use of black hoods, voice-altering devices, and visual partitions. The penalties for convictions were the same as under Decree Law 25.475. The Inter-American Court of Human Rights held that Decree-Law 25,659 violated the American Convention on Human Rights in the 1998 case of Loayza Tamayo.

Decree Law 25.659 – Article 3 – Unofficial Translation
Article 3. – The penalty applicable to the crime of treason to the Mother country, typified in the present Decree Law, will be established in accordance with article 3 of the Decree Law No. 25475.

Civilian Court Retrial: Conviction and Sentencing of 20-years Imprisonment

Under pressure from the United States and the UN Working Group on Arbitrary Detention (Lori Berenson v. Peru, Working Group on Arbitrary Detention, U.N. Doc. E/CN.4/2000/4/Add.1 at 12 (1998), the Supreme Military Court in Peru annulled her sentence in August 2000 and turned the case over to a civilian court. In June 2001, a civilian court found her guilty of collaboration with terrorists, rather than the original high treason, and sentenced her to 20 years in prison. A 4-1 decision of the Supreme Court of Justice of Peru confirmed the sentence on 13 February 2002.

Inter-American Commission on Human Rights – Appeal

On 22 January 1998, an appeal on behalf of Lori Berenson was filed with the Inter-American Commission on Human Rights based on violations of due process and rights established in the American Convention on Human Rights, a treaty ratified by Peru on 12 July 1978. For the full appeal, see Lori Berenson v. Peru, Case 11.876, Report No. 56/98, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 208 (1998). The United States is a signatory to the Convention but, to date, has not ratified the Convention. In addition to the establishment of the Commission, the Convention established the Inter-American Court of Human Rights. Peru accepted jurisdiction of the Inter-American Court on 21 January 1981. When U.S. President George Bush was asked about the Lori Berenson case on March 26, 2002, he deferred to the authority and decision of the Inter-American Commission on Human Rights.

The Inter-American Commission on Human Rights submitted its private review and recommendations to the state of Peru for action. Procedurally, when a state fails to comply with recommendations, the Commission may decide to take the case to the Inter-American Court of Human Rights, as was the case with Lori Berenson’s appeal.

Enhancing her appeal was the political pressure from U.S. Congresswoman Maxine Waters, the unanimous 7-0 decision in her favor by the Commission, and the serious concern by the United Nations in regards to Peruvian Decree-Law 25.475 governing Lori Berenson’s original charges. A
1996 a report by the UN Human Rights Committee, titled Comments on Peru, U.N. Doc. CCPR/C/79/Add.67 (1996), directly addressed Peru’s compliance with the International Covenant on Civil and Political Rights and the serious concerns with Decree-Law 25.475:

With regard to article 1 of this law, declaring that the Amnesty Law
does not undermine the international human rights obligations of the
State, the Committee stresses that domestic legislation cannot modify
a State party’s international obligations under the Covenant.

An amicus curiae brief filed with the Inter-American Court of Human Rights on 3 April 2004 by Dr. Gil Barragán Romero and representing 41 organizations involved in human rights, including Nobel Peace Prize winner Rigoberta Menchú, called for the Court to uphold the findings of previous courts and of the Commission that Decree-Law 25,475 governing Lori Berenson’s original charges, violated the American Convention. They advocated that prisoners unfairly convicted under the illegal law should be released. While not addressing any specific international law, the brief echoed the sentiments of the United Nations regarding domestic legislation that bypasses the international community’s expectation of the protection of human rights:

This instrument is being presented due to concern over the inadequate consideration that has been given to the protecting of human rights in the adoption and enforcement of statutes, procedures, rules, and related laws that regulate conduct commonly designated as “terrorist”
by states’ criminal justice systems.

The brief also included harsh criticism of the United States’ role in influencing legal and justice systems throughout the Americas:

Since the terrorist attacks of 11 September 2001 on the World Trade Center in New York and the Pentagon in Washington, D.C., and the “War on Terrorism” proclaimed by the Government of the United States, the U.S. Government has not only adopted and enforced radical laws and
procedures, it has also pressured other OAS member states, especially Colombia, to adopt similar legislation as part of this “global war on terrorism.” These events and responses pose a grave threat to human rights.

Inter-American Court of Human Rights – Appeal

Despite the strong political and legal support, the Inter-American Court of Human Rights affirmed her current 20-year sentence in Lori Berenson Mejía vs. Perú, Inter-Am. Ct. H.R., (Ser. C) No. 119 (Nov. 25, 2004) (full-text in Spanish). The Court called upon Peru to “adapt its internal legislation to the standards of the American Convention” [p. 113]. It was the first reversal by the Court of a recommendation put forth by the Inter-American Commission on Human Rights. While the Court found that the Peruvian military tribunal did violate Articles 5, 8, and 9 of the Convention regarding humane treatment, right to due process, and laws in compliance with the Convention, the Court found that her sentence for “collaboration with terrorists” in civilian court did not violate Article 9 of the Convention:

Article 9. Freedom from Ex Post Facto Laws

No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter
punishment, the guilty person shall benefit therefrom.

Judge Cecilia Medina Quiroga dissented with Judge Oliver Jackman issuing a separate dissent. Judge Medina expressed concern that the Court, in its restricted review of the validity of evidence in the Peruvian criminal court, acted as an appeals court within the Peruvian system, rather than as a regional court of human rights.

Esto constituye, en mi opinión, una transformación de la Corte Interamericana en un tribunal de cuarta instancia, lo que no le está permitido, tanto por las normas que la rigen como por su propia jurisprudencia ya mencionada.

(translated)
This constitutes, in my opinion, a transformation of the Inter-American Court into a court of fourth instance, which is not allowed to it, as much by the norms that govern it as by its own jurisprudence already mentioned.

In light of Peru’s serious violation of international obligations in the matter of human rights, Judge Medina proposed a “significant reduction” of the sentence, such as a two-to-one reduction with two days given for each day Lori Berenson suffered “cruel and degrading treatments.” Judge Jackman, while voting in concurrence with the decision of the Court, agreed with a reduction of sentence.

Resources

Lori Berenson – Conviction and Appeals

International Treaties

Inter-American Regional Human Rights Institutions

International Standards on Detention or Imprisonment

Republic of Peru Government

Peru Resources

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