PERU: El Frontón Massacre Case Heads Back to Inter-American Court

• by Ángel Chávez (lima)
• Tuesday, December 23, 2008
• Inter Press Service

The action will be taken by the Legal Defence Institute (IDL), which represents families of the victims of the Jun. 19, 1986 massacre in El Frontón, a maximum security island prison off the coast of Lima, committed by naval forces during the first term of current President Alan García (1985-1990).

In August 2000, the Inter-American Court ruled that no statute of limitations applied to the crimes committed in El Frontón, and declared that the state had violated the American Convention on Human Rights.

It also decided that the government must investigate, try, and sanction those responsible for the killings of Nolberto Durand Ugarte and Gabriel Pablo Ugarte, two of the victims of the massacre, who were later found innocent of the terrorism charges on which they had been jailed, and make reparations to their family.

In January and February 2007, in compliance with that ruling, the Attorney General’s Office accused 34 members of the Navy of summarily executing 118 prisoners, in jail on charges of belonging to the Sendero Luminoso (Shining Path) Maoist guerrillas.

Naval forces had been sent in to quell riots in three prisons, including the one at El Frontón, by Sendero Luminoso suspects. According to a cable from the United States Department of State, 'at least 100 prisoners were summarily executed' after they had surrendered.

When the legal charges were brought, one of the former members of the Navy who was prosecuted, Teodorico Bernabé, filed a writ of habeas corpus arguing that the crime of which he was accused was a common crime, and that the statute of limitations expired in June 2006.

A Lima court accepted the argument that the statute of limitations had expired in his case.

In response, the IDL filed a motion with the Constitutional Court, arguing that the Lima court’s ruling in the Bernabé case was unconstitutional, because the prison massacre was a crime against humanity, to which no statutory limitations apply.

But on Dec. 11, the Constitutional Court declared, in a four-to-three decision, that the IDL’s motion was unfounded, and threw it out.

The majority opinion also argued that the Court should not even have admitted the motion presented by the IDL, because the non-governmental organisation did not form part of the trial.

However, the lawyer for the family of Nolberto Durand Ugarte and his uncle Gabriel Pablo Ugarte, the two victims on whose cases the Inter-American Court had ruled, is a member of the IDL.

As a result of the Constitutional Court ruling, all of the members of the Navy facing prosecution in the case of El Frontón stand to benefit from the lower court verdict in Bernabé’s favour.

'The court ruling had unconstitutionally declared that the statute of limitations had expired (in Bernabé’s case), running counter to the Constitutional Court’s jurisprudence, which indicates that it is the state’s responsibility to investigate serious human rights violations,' IDL lawyer Juan Carlos Ruiz told IPS.

'The aim was to get the Constitutional Court to overrule the lower court verdict, and ratify the principle that no statutory limitations apply to crimes against humanity,' he added.

Ruiz does not rule out the possibility that the four magistrates who voted against the IDL motion may have been susceptible to political pressure. Two of them -- Javier Mesía and Fernando Calle -- are known to be affiliated with the governing APRA party, while Ernesto Álvarez, whose view that no statute of limitations applied to the crime was already known, suddenly changed his vote.

'There are sufficient signs indicating that the magistrates were pressured. The case was very simple from a juridical point of view. The Constitutional Court only had to rule in line with the Inter-American Court verdict, which declared that no statutory limitations applied to the El Frontón massacre,' said Ruiz.

'But by throwing out the case, the Court ratified the impunity decreed in the case of one of the members of the Navy. Now the others who face prosecution will invoke the same right, to put an end to the trial,' he said.

To keep that from happening, the IDL is turning once again to the Inter-American Court.

Former Constitutional Court magistrate Magdiel González said the Dec. 11 decision is a step backwards and contradicts earlier resolutions handed down by the Court.

'On at least seven occasions, the Court has ruled, in cases similar to that of El Frontón, that no statutory limitations were applicable,' González told IPS.

'The four magistrates have violated the constitution,' he argued. 'They have committed a constitutional infraction because in a similar case, on the right of victims’ families to know the truth, all seven members of the Court declared that no statutory limitations applied to this kind of crime against humanity.'

'Former president Alberto Fujimori (1990-2000) is in fact facing trial at the moment because the Court ruled that no statute of limitations applied to the Barrios Altos (1991) and La Cantuta (1992) massacres,' he added.

(In those two cases, an army death squad killed 15 people at a barbecue in the Barrios Altos neighbourhood in Lima and nine students and a professor from the La Cantuta University.)

In the view of constitutional expert Enrique Bernales, the Court 'made use of a technicality to avoid ruling on the real question underlying the IDL motion,' and by doing so, 'what it has done is to strengthen impunity,' he told IPS.

Witnesses in the case against the 34 members of the Navy include President García, who as commander-in-chief of the armed forces ordered the military to quash the riot in El Frontón, and Vice President Luis Giampietri, who at the time was an officer with the Navy special operations forces, which staged the assault on the prison.

The Truth and Reconciliation Commission that investigated Peru’s 1980-2000 counterinsurgency war recommended in its 2003 report that the courts conclude the investigations of who was responsible for the killings of prisoners in El Frontón and the other riots.

In October 2007, the Inter-American Commission on Human Rights (IACHR) urged the Peruvian state to reopen the case.

The IACHR also called for a reopening of the investigation of the alleged 'intellectual authors' of the crime -- García, Giampietri and then interior minister Agustín Mantilla. In May 2007, the Attorney General’s Office had shelved the investigations of all three of them on the grounds that there was insufficient evidence to prove that they were responsible for the killings.

© Inter Press Service (2008) — All Rights ReservedOriginal source: Inter Press Service