By Ángel Páez
LIMA, Oct 18 2006 (IPS)

In Peru everyone has the right to a public defender – but some have a greater right than others.

The members of the military and police facing prosecution for their role in the 1980-2000 counterinsurgency war will now enjoy a special legal defence paid by the state.

The Peruvian government decided to extend the benefits of a 2002 law – which stipulates that public employees facing prosecution in the line of duty have the right to be represented by specialised public defenders – to members of the security forces accused of committing human rights violations during the period widely known as the "dirty war".

A new law signed by President Alan García on Sept. 23 provides for "a legal defence that differs from what is granted by the state free of charge, by means of a public defender, to every person facing criminal or civil proceedings," the Defence Ministry explained in a statement.

But García, who took office Jul. 28, has not offered the same benefit to survivors and families of people who fell victim to torture, forced disappearance and murder at the hands of the security forces during his first administration (1985-1990) or at any other time during the counterinsurgency war.

The government explains the deferential treatment granted to members of the security forces by arguing that they "fought for the fatherland."

Based on the CVR report, the courts are prosecuting a large number of members of the military and police who took part in the war against the Maoist Sendero Luminoso (Shining Path) guerrillas and the smaller Tupac Amaru Revolutionary Movement (MRTA), both of which have been destroyed.

According to the CVR, nearly 70,000 people were killed or "disappeared", as victims of the guerrillas or the state security forces during the armed conflict.

"There has been an excessive judicialisation of the conclusions reached by the CVR, which has led to an unjust situation: a very large number of members of the armed forces and police are being tried and investigated, with the consequent anxiety for themselves and their families. They number 920, including both active-duty and retired service members," Defence Minister Allan Wagner commented to IPS.

"The great majority of those who fought against subversion have problems defending themselves, which is why President García decided that the state will help those who put their life on the line to defend society from the terrorist threat," he added.

But the former secretary general of the CVR, Javier Ciurlizza, told IPS: "The Commission identified those who were responsible, and the number was much smaller than the one given by Minister Wagner. Moreover, it identified them, but didn&#39t accuse them, because the Commission did not act as a court."

When it completed its work, the CVR recommended that the authorities investigate 47 cases of human rights violations.

The 47 cases involved 1,465 victims, and the Commission identified 492 suspects: 356 members of the military, 70 police officers, and 66 members of "self-defence committees" that were organised and armed by the security forces.

But only three-quarters of the 492 suspects have actually been identified by name, since the service members acted under pseudonyms during the counterinsurgency war.

Ciurlizza pointed out that while the state will pay for the lawyers of members of the armed forces and the police, less than 25 percent of the families of the 1,465 victims have legal assistance.

Hardest-hit by the political violence were impoverished indigenous communities in Peru&#39s Andean highlands region, who cannot afford lawyers to take legal action against those who killed or "disappeared" their family members.

Ciurlizza said the total number of accused grew over the last few years, as a result of the investigations by prosecutors and judges, from 492 to the roughly 900 members of the security forces who are currently being investigated or tried.

The law signed by García on Sept. 23 is so broad that it does not exclude from the legal benefits members of the military who gained notoriety for massacres of civilians. For example, the members of the "Colina group", a specialised squad of military intelligence officers established to eliminate suspected terrorists, could claim the right to legal assistance from the state under the new law.

The law does not make any distinction between the accused because "in the fight against terrorism, the armed forces and the police offered the country the lives of their members and the pain of their families, which should be recognised by society and by the state," said Wagner.

However, the defence minister announced that a legal defence team set up by his ministry will study the requests for legal assistance.

"Assistance will be granted to those who are unjustly accused. We are going to give them a chance to exercise their right to a defence. This, of course, must not be confused with impunity," he added.

The new law thus gives the Defence Ministry the power to decide which cases against alleged human rights violators are just or unjust, even though it is the courts that must decide who is innocent or guilty.

"Saying which cases are fair or unfair implies a prior judgment of responsibility," the former chairman of the CVR, Salomón Lerner, told IPS. "A pre-trial mechanism that runs precisely counter to the spirit of the law cannot be created. That is an aspect that needs to be clarified."

Wagner, meanwhile, remarked to IPS that "everything will be duly clarified when the law is codified."

Lerner also said that "it is not only the military and police who have the right to a defence, but civilians as well – in this case, the victims of political violence, who because of poverty and lack of protection are unable to seek justice."

"There are civilian witnesses who play a key role in these cases, but who have no protection or economic support to enable them to attend the trials," he added. "So an unpleasant discrimination could be generated between civilians and members of the military, with the latter receiving better legal assistance, while the former would only have poorly-paid court-appointed public defenders, who are not the best."

The service members who took part in the counterinsurgency war believe the CVR is to blame for the large number of prosecutions they are facing on charges of torture, kidnapping, forced disappearance and murder, and some argue that the trials are part of a "strategic plan" by terrorist groups.

"There is a new kind of subversive organisation, which no longer uses violence in a bid to seize power but uses a peaceful method of infiltration in the state apparatus, bringing ‘legal action&#39 to break the morale and spirit of the forces of law and order; in other words, to defeat them in the sphere of politics, as a step previous to their defeat on the military front," wrote retired general José Cabrejos with the Association of Defenders of Democracy Against Terrorism.

Cabrejos is a witness in the case involving the August 1985 army massacre of 74 children, women and old men in the highlands village of Accomarca, in the southeastern region of Ayacucho.

Miguel Jugo, the director of the Pro Human Rights Association, told IPS that "We do not believe that the main victims of the internal conflict are officers who are now facing prosecution."

"I don&#39t understand how it will be determined which cases are to be taken up and which are not. I don&#39t know how you can talk about a filter, since it is the judiciary that must determine who is responsible and who is not," he added.

Gloria Cano, a lawyer with the Pro Human Rights Association who represents many dirty war survivors and families of victims, said her organisation continues to receive requests from families in search of legal assistance, who cannot afford a lawyer.

"Recently I had two cases in my office, involving people killed by members of the army, but we could not represent them because the cases involve a number of trips, and we don&#39t have enough money to cover the costs. The families thus suffer not only the loss of their parents or siblings, but also unjust discrimination," Cano told IPS.

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