Maoist Shining Path Leader Abimael Guzmán Sentenced Again to Life

Fourteen years after a secret military tribunal sentenced Maoist Shining Path leader Abimael Guzmán to life imprisonment in October 1992, a Peruvian civilian anti-terrorist court on Friday handed down the same life sentence. Guzmán’s year-long retrial resulted from a 60-page ruling by the Peruvian Constitutional Court in 2003 that declared secret military tribunals unconstitutional and in violation of international human rights standards. Guzmán’s lawyer, Manuel Fajardo, unsuccessfully argued that Guzmán should be granted amnesty or the charges dropped based on due process violations. Fajardo also argued that the charge of terrorism should be lessened to rebellion. Guzmán can appeal the guilty verdict in national courts and, if unsuccessful, to the Inter-American Court of Human Rights. In 2003, the Peruvian Truth Commission attributed 54 percent of the estimated 70,000 deaths and disappearances between 1980 and 2000 to the Shining Path rebel movement.

1992 Presidential Self-Coup and the Anti-Terrorism Decrees
Before the arrests of Guzmán and other Shining Path leaders, former President Fujimori (1990-2000) took three major unilateral actions in early 1992 to make prosecutions of domestic terrorists easier and less transparent. First, Fujimori unilaterally suspended the 1979 Constitution of Peru in April 1992. In doing so, he eliminated the constitutional protections of Article 282, which prohibited the trial of a civilian by a military court except in cases of treason during a time of foreign war. Under Article 282, Guzmán and other insurgent rebels would have been entitled to public trials in civil courts because they were civilians engaged in a domestic rebellion, not a foreign war. Second, Fujimori dissolved parliament and assumed complete political authority. Third, Fujimori issued four Presidential Decree Laws (25475, 25659, 25708, and 25880). These decrees defined broad standards for what constituted treason. The decrees also mandated harsh sentences and created “faceless courts” with virtually no accountability to the public. Three years ago, in the case of Marcelino Tineo Silva and more than 5,000 Peruvians, the Peruvian Constitutional Court declared that some of the decrees were unconstitutional with respect to the 1979 Constitution that Fujimori suspended.

Guzmán made the same arguments as in the case of Marcelino Tineo Silva in his 1998 appeal to the United Nations Working Group on Arbitrary Detention. He argued that Decree Laws 25.659 and 25.708, under which he was convicted in 1992 by a military court for “treason to the country,” violated the Peruvian Constitution and international human rights standards. Under international law, he made four main arguments. First, he argued the decrees violated his right to a competent, independent and impartial trial under Article 10 of the Universal Declaration of Human Rights (UDHR) and Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Second, he argued the decrees violated the respect for human dignity protected under Article 10 of the ICCPR and Article 5 of the American Convention on Human Rights (ACHR). Third, he argued the decrees violated the presumption of innocence for the accused under Article 11 of the UDHR and Article 14 of the ICCPR. Lastly, he asserted his trial and detainment constituted arbitrary detention as defined by the UN Working Group on Arbitrary Detention in its January 21, 1992 report.

Two months after Guzmán’s petition to the UN, the Inter-American Court of Human Rights held that Decree Laws 25.475 and 25.659 violated the American Convention on Human Rights in the case of Maria Elena Loayza Tamayo. There, the court ordered the Peruvian government to fulfill its obligation under Article 2 of the Convention, which requires member states to adopt constitutional procedures and legislation in accordance with the rights and liberties under the Convention. Peru delayed action until the Peruvian Constitutional Court ruling in 2003. That ruling declared Decree Law 25.659 unconstitutional but not Decree Law 25.475. Accordingly, the ruling permitted Guzmán, like other rebels convicted under 25.659, the opportunity to appeal his conviction and to request a retrial in a civilian court. The 2003 ruling did not make retrials automatic. Notably, rebels convicted in military courts but previously retried in civilian courts prior to 1993 could not appeal for another civil retrial.

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.

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 held that Decree-Law 25,659 violated the American Convention on Human Rights in the 1998 case of Loayza Tamayo.

1992 Anti-terrorist Law – Presidential Decree Law 25.708 – Unconstitutional
This decree described the procedures for adjudicating crimes of treason under Decree Law 25.659.

1992 Anti-terrorist Law – Presidential Decree Law 25.880 – Unconstitutional
The last of the four decrees, Decree Law 25.880, prohibited the “teaching” of the Shining Path philosophy and imposed a penalty of life imprisonment. The decree specifically targeted Guzmán, a lawyer and university professor, through the inclusion of the word “professor” in the first sentence.

Violations of International Human Rights Treaties
Fujimori’s four anti-terrorism decrees violated the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights.

Abimael Guzmán Sentencing – 1992-2006
The Peruvian government arrested Abimael Guzmán and either other Shining Path leaders on September 12, 1992 in a house in Lima, Peru. In October 1992, a secret military tribunal in Callao sentenced Guzmán to life imprisonment. When the Constitutional Court declared Fujimori’s anti-terrorism decrees unconstitutional in 2003, the judiciary granted Guzman and other rebel leaders the opportunity for retrials. The civil court suspended Guzmán’s retrial in late-2004 due to media intervention and conflicts of interests by two judges. In the subsequent 2005 retrial, the judge barred reporters, tape recorders, and cameras. On Friday, October 13, 2006, a Peruvian civil court again sentenced Guzmán, age 71 years, to life imprisonment for his role as leader of the Shining Path, known as “Sendero Luminoso” in Spanish. His lover, Elena Iparraguirre, also received a life sentence.

Number of Deaths and Disappearances in Peru 1980-2000
The Peruvian Truth and Reconciliation Commission reported its findings and ten recommendations in 2003. In the report, the Commission attributed 53.68% of the estimated 69,280 deaths and disappearances between 1980 and 2000 to the Shining Path rebel movement. The Commission confidently released the percentage of accountability to a precision of two decimals places based on a statistical estimate reliant on an extrapolation of the 23,969 deaths and disappearances reported in Ayacucho. Using that data and taking into account the geographical and ethnic differences in Peru’s patterns of violence, the Commission estimated a range of 61,007 to 77,552 deaths within a 95% confidence interval. Then, the Commission calculated the statistical mean, commonly known as “the average,” to determine the estimated total of 69,280 deaths and disappearances.

Historical Note

The Peruvian Truth and Reconciliation Commission was the first truth commission in Latin America to include public hearings as part of the process.

International Treaties

• American Declaration of the Rights and Duties of Man (April 1948)
• International Covenant on Civil and Political Rights (23 March 1976)
• Optional Protocol to the International Covenant on Civil and Political Rights (23 March 1976)
• Universal Declaration of Human Rights (10 December 1948)
• American Convention on Human Rights (18 July 1978)

International Courts

• Inter-American Court of Human Rights (1969)
• Inter-American Commission on Human Rights (1959)

International Standards on Detention or Imprisonment

• UN Working Group on Arbitrary Detention
• Universal Declaration of Human Rights
• International Covenant on Civil and Political Rights (ICCPR)
• Body of principles for the protection of all persons under any form of detention or imprisonment
• Standard Minimum Rules for the Treatment of Prisoners
• United Nations Rules for the Protection of Juveniles Deprived of their Liberty
• United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”)

Republic of Peru Government

• Peru Constitution
• Constitutional Court of Peru
• Peru President
• Peru Congress
• Peru Library of Congress
• Presidency of the Council of Ministers
• Peru Judicial Branch
• Peru Supreme Court of Justice
• National Supervision of Tributary Administration (SUNAT)
• Peru Truth and Reconciliation Committee (Final Report 28 August 2003)

Peru Resources

• Institute for Liberty and Democracy, Lima, Peru
• The World Bank – Peru
• Peru National Coordinator of Human rights (CNDDHH)
• CNDDHH – Extradition of Fujimori
• FujimoriAlberto.com

Organizations

• Peru Human Rights Commission (COMISEDH)
• Organization of American States (OAS)

Media and Blogs

• Living in Peru