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Criminalidad y Justicia

In Peru, soldiers accused of human rights violations have more access to government legal aid than their victims

Un dominicano que fue indocumentado en Nueva York, un mexicano que llegó de niño a Nevada donde vio cómo su familia construyó el "sueño americano" o la primera senadora latina están entre los nuevos rostros hispanos elegidos el pasado 8 de noviembre. Todos ellos son demócratas y estarán en la primera fila de la oposición a Donald Trump y la mayoría republicana en el Congreso.
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7 Abr 2017 – 2:50 PM EDT


In a Lima courtroom last February, retired Gen. Daniel Urresti leaped from his chair in protest to judges at his murder trial. “My defense is threatened!” he shouted. Minutes earlier, the presiding judge had rejected new evidence introduced by Urresti’s attorney, including medical certificates and sworn statements from fellow soldiers who contradicted witness testimony.

The judges blocked the general from speaking, which led to an awkward moment. Urresti then made a comment to his attorney that was interpreted as a threat. Realizing he had done himself no favors, Urresti apologized to the court and sat down with the nervous look of a client awaiting a serious verdict. But he should have trusted his private lawyer, provided to him by the government to keep him from going to prison.

Urresti, who was secretary of the interior and a presidential candidate, is one of 47 soldiers in Peru accused of human rights abuses who have taken advantage of this legal assistance program enacted in 2006.

He is accused of assassinating journalist Hugo Bustíos in the late 1980s. Back then, Urresti was chief of intelligence at a counterintelligence base in Ayacucho, in the central Peruvian Andes. The region was one of the hardest hit by civil war raging at the time. An earlier trial over the killing ended in 2007 with the conviction of two other officials, but one of them named Urresti has having ordered the crime.

Urresti’s legal troubles began in 2013, but an investigation of his role in the killing wasn’t made public until the following year, after he had become a member of President Ollanta Humala’s Cabinet. In response, Hugo Bustíos’ widow penned an open letter denouncing the “absolute inequality” of the legal situation in which a government minister would face a victim’s relatives in court.

“If you say you are innocent – and I’m not the one accusing you,” she wrote, “then prove it under conditions that are equal to those of my family’s.”

Her plea was ignored. While the case against him continues, Gen. Urresti is a free man represented by the private law firm Roy Freyre. The firm’s defense of Urresti is paid under contract with the Defense Ministry at a cost of 30,000 soles, about $9,000. Meanwhile, Bustíos’ widow depends on the Comisión de Derechos Humanos (Human Rights Commission, or Comisedh), a nongovernmental organization that specializes in these types of crimes. She continued to fight for justice for her husband’s murder when she was killed in a traffic accident in October 2016.


No more lawyers left

The legal aid provided to members of the military is perhaps one of the greatest imbalances in the modern Peruvian justice system. Any non-member of the military who can’t afford a private attorney must rely on a public defender or legal advocate assigned by an office of the Justice and Human Rights Ministry.

The General Directorate of Public Defense and Access to Justice, part of the Justice and Human Rights Ministry, has 1,211 lawyers for the country’s 33 judicial districts. These lawyers usually work on common criminal cases, either representing the defendants or providing legal advocacy for victims. Only a small fraction of them work on human rights cases, and they face severe limitations.

The most glaring example is that only three legal advocates are working the Ayacucho cases, which include more than 49,000 victims of torture, kidnapping and assassination, or their relatives.

The situation worsened in October 2016, when the Justice Ministry under a new administration laid off 200 public defenders and legal advocates from numerous cities across the country.

“These lawyers were given raises and additional staff was added, but there was no budget to pay for it down the road,” Luis Alejandro Yshi Meza, managing director of the Justice Ministry’s public defender’s office, told OjoPúblico in Lima. “It wasn’t sustainable over time.”

The layoffs increased the workload of those who remained, at the public’s expense. In Ayacucho alone, where 50 public lawyers work all types of cases, each attorney has an average of 100 ongoing cases, with 10 new ones added each month.

“The responsibilities of each public attorney are currently being re-engineered,” Yshi Meza said.


While the abrupt layoffs were occurring, a meeting was held between the public defenders’ office and representatives from human rights organizations, who should have raised the alarm and ramped up their activities.

In that meeting, the need to begin coordinating was discussed so that the NGOs could turn over their cases to public legal advocates. After 30 years of intense activities, the NGOs’ resources were dwindling.

“Our financing sources were saying that they had sufficiently supported these cases and that it was time for the government to assume responsibility,” said Gloria Cano, of the Asociación Pro Derechos Humanos (Pro-Human Rights Association, or Aprodeh), one of the country’s oldest and most active independent civil society organizations.

At least three important NGOs interviewed for this story said they were in the same situation. Aprodeh stopped taking new cases two years ago. It currently has 40 cases, among them the Cabitos case involving a military barracks that was the scene of several crimes against humanity. Comisedh, which is prosecuting the case against Gen. Urresti, plans to focus its efforts on this and other landmark cases. Paz y Esperanza (Peace and Hope) plans to transfer to public attorneys the Putis cases involving an army massacre of 123 people, including 14 children, in an Andes village.

By now, the consequences of these developments are well-known.

“What has happened is the majority of people who are victims of some type of human rights violation go through these legal processes defenseless, without legal representation,” Cano said.

The organizations estimate that even with their support, barely one-tenth of those who need legal representation actually get it. In post-war Peru, that means more than 150,000 people fall into the category of the defenseless among the defenseless, according to figures from the Justice Ministry’s Victims Registry.

The situation is different for the 47 members of the military charged with human rights violations, who receive or have received public resources for their defense. To date, the government has spent 402,945 soles ($125,000) on individual lawyers or private investigations in amounts that range from 11,000 soles to 80,000 soles ($3,000-$25,000). That is the equivalent of the average salaries of 80 public defenders and victims’ advocates. Among those who benefit are 28 soldiers accused of 20 forced disappearance cases. At least 10 have been acquitted.

The burden of public legal advocacy

Each morning in Ayacucho, dozens of people arrive at a two-story rental home on a street lined with restaurants and clinics near the city’s center. The house serves as the headquarters of the district public defender’s office.

Many arrive for cases ranging from failure to pay child support to sexual assault of a minor. They take a number and wait their turn to see an attorney seated in a cubicle reminiscent of an internet café. In these conditions, it’s nearly impossible to have a private conversation. The biggest logistical achievement in this office is that attorneys for the victims meet their clients on the first floor, while defense attorneys see theirs on the second.

Three of these advocate lawyers are responsible for human rights cases. None of them work in the appropriate conditions to do that.

“Properly working a case requires a significant investment of time, and we aren’t exclusive,” attorney Cris Bautista Quispe, a former assistant prosecutor who began working as a public defender and legal advocate in 2014, told OjoPúblico.


The defenseless among the defenseless

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In many cases, these attorneys’ work is limited to carrying out campaigns to guide the aggrieved through the process of exhumation, and the turning over of remains to family members – two of the biggest pending government tasks.

“We haven’t represented anyone because that requires significant financial resources,” said Richard Almonacid, a lawyer who previously worked as a judge in Huamanga, the region’s capital. “To travel to areas far from Ayacucho, we have to pay our own meals, lodging and even gasoline for the vehicles assigned to us,” the former judge said.

Almonacid attends three or four hearings a day for common criminal cases. But the cost of traveling to hearings is only one area facing shortages. Resources also are needed to gather evidence, find witnesses and search for documents in government agencies or archives.

“Sometimes you have to be a detective,” said Cano, who trains public defenders and victims’ advocates in several legal procedures.

Much of this administrative work is unavoidable to reconstruct a crime scene or its context. In cases where military members are accused of being the perpetrators, it requires obtaining information on the chain of command and operational methods, which high-ranking military officials often refuse to turn over.

In 2013, a lack of this kind of evidence led Ayacucho human rights and terrorism prosecutors to close 1,335 cases of human rights violations, according to a report at the time by the daily La República.

The NGOs’ experiences suggest that the job exceeds the capabilities of public defenders and legal advocates.

“Investigating these types of crimes requires specific specialists in addition to lawyers, [such as] forensic anthropologists, military experts [and] terrorism experts,” said Comisedh President Pablo Rojas, former executive secretary of the Coordinadora Nacional de Derechos Humanos (National Human Rights Coordinator). “The investigation of Lava Jato is an example [of what is needed]. It’s not just about the work of the prosecutors – it’s an entire apparatus of specialists [that is needed].”

While victims’ advocates face these problems, members of the military have private attorneys with access to additional resources. Aprodeh’s legal team said they have noticed that a coordinator facilitates administrative procedures, trips and transport of defendants and their witnesses to hearings.

“How much does the government spend on that?” Rojas asked. “I don’t know.”

Comisedh attorney Hernán Barrenechea, who represents journalist Hugo Bustíos’ family in the case against Gen. Urresti, has observed the same trend.

“The logistics [of the case] were reflected with great clarity,” he said, referring to a hearing on a crime scene at a military base from where the assassins are thought to have emerged. “The soldiers gave better protection to their fellow soldiers and to Urresti, including using force against our witnesses and personnel from the civilian team.”

Responding to questions from OjoPúblico, the Defense Ministry denied that such support is provided.

“The human rights organizations have completed the work of protecting and legally representing the victims,” said Patricia Figueroa, vice minister of public defense resources. “That’s why we have a verdict for Barrios Altos [and] a verdict for La Cantuta,” she said, referring to two massacres committed by a death squad during the administration of Alberto Fujimori.

However, Figueroa admitted that an unfair advantage exists regarding government aid for defendants compared to the victims.

“We can’t give financial support to the victims. They have the system at the Justice Ministry for that,” she said.

Effectiveness isn’t measured in numbers

One morning last January, a few days before Gen. Urresti’s trial outburst, Adelina García de Mendoza tried to recall the list of lawyers she met while pursuing justice for her husband. Her husband was executed in an extrajudicial killing by a military patrol in the early 1980s. The first lawyer on the list, Zózimo Roca, was forced to flee Ayacucho after receiving death threats. Next came Roca’s secretary, Máximo Rico, who was murdered in 1988. The third lawyer was Fernando Colunga, executed a year later. Others fled, and one received a mail bomb, which luckily didn’t explode in his hands.

Amid all of this distress – and thanks to more than a few acts of solidarity – the case moved forward. The story of García’s husband eventually made its way into the Cabitos case file, in which members of the army detained, tortured and executed more than 100 people at a military barracks.

“At the time, it was difficult for us to see who could lend us a hand, who was our ally,” García recalled in a conversation with OjoPúblico.

The Comisión de la Verdad y Reconciliación (Truth and Reconciliation Commission, or CVR) recommended that a criminal class action be brought to court in which several victims could be identified who suffered the same fate at the same time. That allowed a modus operandi to be established, along with the identification of the perpetrators. However, Peru’s justice system divided the cases into three parts, of which only one is currently in the testimony phase. The other two have languished for 13 years without prosecutors having brought a single charge.

It’s a question of numbers. “For the prosecutor’s office, it’s more convenient to open 53 cases than just one case with 53 victims,” Aprodeh’s Gloria Cano said. “They work based on production.”

But statistics are deceptive. In 2016 alone, public defenders and victims’ advocates filed more than 21,000 legal motions for jurisdiction of victims of all types of crimes , and they responded to more than 68,000 inquiries from victims across the country. Both statistics were greater than those registered in the three previous years.

But the General Directorate of Public Defense and Access to Justice lacks a fundamental indicator: one that establishes how many cases argued by its lawyers have ended in favorable outcomes for clients. In terms of human rights, that type of indicator would signal how many people were freed from unjust convictions or how many torturers and assassins have been convicted.

“We can’t talk about only one indicator to accurately describe the responsibility that public defenders and legal advocates have,” Luis Alejandro Yshi, head of public defenders and advocates, said.

Yshi acknowledged that effectiveness can’t be measured by the number of hearings attorneys attend. “We’re developing quality indices,” he said.

The truth is that the quickest and most effective legal improvements have benefited those who already are privileged. In October 2008, just two years after the decree was issued to provide private defense for soldiers accused of human rights violations, the administration of Alan García issued another decree modifying the terms, giving soldiers even more benefits.

The new decree added the right to legal representation for military members involved as witnesses. It also eliminated the requirement that a type of bond be paid (such as a mortgage or letter of guarantee) to reimburse state costs if a defendant is found guilty. Instead, in a guilty verdict, those costs wouldn’t immediately be recuperated, but rather would be withheld from a defendant’s salary.

And for the few convictions that have happened, all have been appealed to the Supreme Court. Since no final ruling has been handed down yet, not a single soldier has reimbursed the government for the costs of private legal counsel.

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