Sr. Jorge Alfonso del Castillo Gálvez

Primer Ministro

Av. 28 de Julio 878, Miraflores,

Lima 18, PERÚ

08 March 2007

Dear Prime Minister,

Re: Proposed Extension of Death Penalty Laws

We are writing on behalf of the Human Rights Institute of the International Bar Association (IBA) in connection with information we have received concerning the recent proposal by the Peruvian Executive to hold a referendum on extending death penalty legislation.

In its role as a dual membership organisation, comprising 30,000 individual lawyers and over 195 Bar Associations and Law Societies, the IBA influences the development of international law reform and shapes the future of the legal profession. Its member organisations cover all continents. The IBA’s Human Rights Institute works across the association, helping to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

We are aware that Peru abolished capital punishment in 1979 for all crimes other than those relating to treason in times of war. On 11 November 2006, we received reports that your Government submitted a draft bill to Congress calling for the introduction of the death penalty for those convicted of terrorist offences. Members of Congress voted against the Bill on 10 January 2007.

Although we welcome the decision by Congress to vote against the Bill, we remain concerned that three other draft bills are still before Congress. The first two, introduced by the governing American Popular Revolutionary Alliance Party (APRA), propose to reform article 140 of the Constitution to extend the use of the death penalty to cover those convicted of the rape and murder of children under the age of seven. Both bills also call for withdrawal from the American Convention on Human Rights (ACHR). Another bill, put forward by the National Unity Party, seeks further reform of article 140, calling to extend the use of the death penalty to those convicted of the rape and murder of children between the ages of nine and eighteen and those with mental or physical disabilities; and the murder of children under the age of nine.

As a state party to the American Convention on Human Rights, ratified by Peru in December, 1978, Peru has a legal obligation to respect its provisions. Furthermore, many of the provisions contained within the ACHR have entered into international customary law and thus Peru would continue to be bound by these even if attempts to withdraw from the Convention are successful.

Article 4 of the ACHR clearly states that the death penalty should, under no circumstances, be extended to crimes beyond those to which it applies at the time of ratification. An advisory opinion issued by the Inter-American Court of Human Rights in 1983 supports this position, asserting that the ACHR absolutely prohibits state parties from extending the death penalty to any crime that was not already a capital offence when the treaty entered into force. We would also like to draw your attention to Resolution 2005/59 of the United Nations Commission on Human Rights which calls upon all States that uphold the death penalty to abolish it completely and, in the meantime, to establish a moratorium on executions; to progressively restrict the number of offences for which it may be imposed; and, at the least, to refrain from extending its application.

We are also deeply concerned by the attempts by the Executive to reform Article 32 of the Constitution in order to hold a referendum on the extension of the death penalty laws. Article 32 clearly states that:

‘Neither the elimination or curtailing of fundamental rights of the individual, nor tax and budget regulations, nor international treaties in effect may be subject to a referendum’.

The spirit of this Article was reinforced by a sentence of Peruvian Constitutional Tribunal (Sentence of 25 January 2003) in which it stated that neither the suppression nor reduction of fundamental rights can be subject to referendum.

We would also like to draw your attention to the Human Rights Committee’s comments on Peru’s 1996 report on the International Covenant on Civil and Political Rights (ICCPR) which refers to Peru’s extension of the death penalty in 1993. The Committee notes with deep concern that the ‘extension of the scope of the application of the death penalty raises questions as to the compatibility with Article 6 of the ICCPR’. Furthermore, the General Comment on Article 6 of the ICCPR, The Right to Life, states that abolition of the death penalty is desirable and should be considered as progress in the enjoyment of the right to life.

The evolution of international law and the trend towards the abolition of the death penalty is illustrated by the UN General Assembly’s adoption of the Second Optional Protocol to the ICCPR and the general reluctance by those states that have retained capital punishment on their statute books to exercise it in practice. In 2005, the only remaining provision in Mexican criminal law permitting the death penalty was abolished. The African Commission on Human and People’s Rights has also encouraged this trend by adopting a Resolution Urging States to Envisage a Moratorium on the Death Penalty. In May 2002 the Member Sates of the European Union adopted Protocol 13 concerning the abolition of the death penalty in all circumstances.

Moreover, the trend towards abolition is supported by a statement made by the United Nations High Commissioner for Human Rights:  ‘There is a worldwide trend towards more restricted application of the death penalty, the application of moratoria and the abolition of the sentence. Alongside this national practice, United Nations sponsored tribunals do not imposed the death sentence, and the international community forum for the most serious international crimes, the International Criminal Court, does not have the power to impose the death penalty’.

We strongly condemn acts of terrorism, rape and murder. However, we believe that extending the scope of death penalty legislation would be in contravention of international standards on human rights and would severely compromise the global shift towards the eradication of capital punishment under international law. Thus, we urge your Government to take all necessary measures to secure the respect of the right to life of all persons in accordance with international principles and standards on human rights.

We should be grateful to receive your assurances that our concerns will be addressed as a matter of urgency.

Yours sincerely,

Ambassador Emilio Càrdenas                        
Justice Richard J Goldstone
Human Rights Institute Council Co-Chairs

CC: Minister of Foreign Affairs, Sr. José Antonio García Belaunde; President of the Congress, Sra. Mercedes Cabanillas Bustamente; President of the Congressional Justice and Human Rights Commission, Dr. Raúl Castro Stagnaro; President of the Constitution and Congress Regulations Commission, Dr. Aurelio Pastor Valdivieso