María Isabel Rivero
IACHR Press and Communication Office
Tel: +1 (202) 370-9001
Washington, D.C. - The Inter-American Commission on Human Rights’ Rapporteurship on the Rights of Persons Deprived of Liberty carried out a working visit to Peru on February 24, 2017. The main purpose of the visit was to analyze the key advances and challenges the Peruvian State is facing to reduce the use of pretrial detention. The delegation was composed of the President of the Commission and Rapporteur on the Rights of Persons Deprived of Liberty, Commissioner James Cavallaro, and staff of the Executive Secretariat.
The IACHR thanks the Peruvian State for its valuable cooperation and facilitation in making this visit possible, and appreciates the authorities’ willingness to receive the Rapporteurship so it could carry out its monitoring activities. Likewise, the Commission recognizes the transparency shown by the government institutions that provided the information requested, and it is especially grateful for the information provided by the Ministry of Justice and Human Rights. The Commission also appreciates the information provided by civil society and academic representatives in Peru, primarily by the Instituto de Defensa Legal [Legal Defense Institute, IDL] and the Instituto de Democracia y Derechos Humanos Pontifica Universidad Católica del Perú [Institute of Democracy and Human Rights at the Pontifical Catholic University of Peru, IDEHPUCP].
During the visit, the IACHR Rapporteurship met with various government officials, including the Minister of Justice and Human Rights, María Soledad Pérez Tello; the Deputy Minister of Human Rights and Access to Justice, Gisella Rosa Vignolo Huamaní; and the President of the National Prison Council, Carlos Zoe Vásquez Ganoza. The IACHR delegation also met with civil society and academic organizations, including the Centro para el Desarrollo de la Justicia y la Seguridad Ciudadana [Center for the Development of Justice and Citizen Security, CERJUSC]; Clínica Jurídica de Discapacidad [Legal Clinic on Disability] at the Pontifical Catholic University; Comisión Episcopal de Acción Social [Episcopal Commission on Social Action, CEAS]; Coordinadora Nacional de Derechos Humanos [National Human Rights Coordinating Committee, CNDDHH]; Grupo de Investigación Derecho, Genero y Sexualidad [Law, Gender, and Sexuality Research Group, DEGESE] at the Pontifical Catholic University; the IDEHPUCP; and the IDL, which convened this forum for dialogue.
The Rapporteurship also held a colloquium on measures the State of Peru has adopted to reduce pretrial detention. This activity was carried out in conjunction with the Ministry of Justice and Human Rights, and included the participation of members of various government institutions, such as the Ministry of Justice and Human Rights, the judicial branch, the Office of the Public Prosecutor, the Human Rights Ombudsman’s Office, the National Council of the Judiciary, the National Prison Institute, and the Judicial Academy. Civil society and academic organizations were also in attendance.
Based on information collected by the IACHR Rapporteurship during its working visit, the Commission points to the following aspects related to the situation of pretrial detention in Peru:
The last report published by the National Prison Institute (INPE) indicates that in December 2016, Peru had a total prison population of 82,023 inmates. Of those, 35,499 were being held in pretrial detention, amounting to 43.2 percent of the total prison population. The IACHR expresses its concern regarding the information reported by State authorities, as well as civil society and academic organizations, indicating that there is a lack of reliable information pertaining to statistics on pretrial detention and on the prison system in general. The main reason for this is apparently that the implementation of the adversarial justice system is not yet complete and cases are still being examined under the previous justice system, where there is reportedly insufficient monitoring to allow for clear statistics to be compiled. By contrast, cases in the adversarial criminal justice system are being monitored by the Technical Secretariat of the Special Commission on Implementation of the Code of Criminal Procedure.
For its part, the IACHR observes that even though the percentage of people in pretrial detention has dropped by 16 percentage points since 2012—from 58.8 percent in July 2012 to 43.2 percent in December 2016—there has actually been an increase of nearly 1,000 people in pretrial detention, which shows the growth of the prison population in Peru. The Commission is particularly concerned by the fact that the total prison population has grown by approximately 40 percent in the last four years; there were 58,681 people deprived of liberty in 2012 and 82,023 currently.
Use of Pretrial Detention and Application of Alternative Measures
In its Report on the Use of Pretrial Detention in the Americas, the IACHR established that the non-exceptional use of pretrial detention is one of the most serious and widespread problems faced by OAS Member States in terms of respecting and guaranteeing the rights of persons deprived of liberty. The IACHR calls to mind that pretrial detention should be a strictly extraordinary measure, and that its application should comply with the principles of legality, presumption of innocence, reasonableness, necessity, and proportionality.
For its part, the Rapporteurship was informed about the challenges the Peruvian State faces in reducing the use of pretrial detention and promoting the application of alternative measures. This is due to different factors, such as crime policies that promote higher incarceration rates, the inadequate defense provided to people in pretrial detention, and pressure from the media and the public to address public safety concerns through deprivation of liberty. On the first point, the IACHR received information about crime policies that propose higher incarceration rates as a solution to public safety concerns; these translate into legislation that favors the application of pretrial detention and restricts the possibility of applying alternative measures.
The Inter-American Commission also expresses its concern regarding information it received from various sources indicating that the media and the public, and even the authorities themselves, exert pressure to confront problems of public safety through the application of pretrial detention. Specifically, members of the judicial branch reported that their disciplinary bodies favor the use of pretrial detention and have punished and replaced judges “who don’t jail people who have been accused.”
The IACHR calls to mind that the rational use of non-custodial precautionary measures, in accordance with the criteria of legality, necessity, and proportionality, in no way conflicts with the rights of victims, nor does it represent a form of impunity. To hold otherwise would be to ignore the nature and purposes of pretrial detention in a democratic society. The IACHR thus recommends to the State of Peru that it redirect its public policies to make the exceptional nature of pretrial detention a centerpiece of its policies on crime and citizen security, and avoid having a hardline criminal justice system that ends up imprisoning individuals during criminal proceedings in response to demands for citizen security. In addition, considering the consequences of applying pretrial detention, the IACHR urges the State to implement alternative measures, which not only would help reduce overcrowding but are one of the most effective means by which States can prevent community disintegration and stigma, reduce recidivism rates, and make more efficient use of public resources.
Recent Measures related to Pretrial Detention
In recent years, the State of Peru has undertaken many efforts to adopt measures related to the use of pretrial detention. These include the following: modifying the maximum duration for pretrial detention, through Legislative Decree No. 1307 of January 2017; establishing that pretrial detention hearings are handled by courts of second instance, through Legislative Decree No. 1206 of September 2015; expanding the scope of implementation of expedited or summary proceedings, through Legislative Decree No. 1194 of November 2015; approving guidelines for the use of videoconferencing in criminal cases; expanding the list of alternative measures available; regulating electronic monitoring mechanisms; and promoting training programs on the New Code of Criminal Procedure that cover the exceptional use of pretrial detention and alternative measures. In terms of case law, the Commission views as positive the decisions issued by the Supreme Court of Peru that represent significant progress in ensuring that the use of pretrial detention will be an exception. Along these lines, the IACHR points to Judgment No. 626-2013 of the Cassation Court of Moquegua, dated February 27, 2016, and Judgment No. 631-2015 of the Cassation Court of Arequipa, dated December 21, 2015.
On the legislative front, the IACHR expresses its concern regarding the increase in the duration of pretrial detention contemplated in Legislative Decree No. 1307 of January 2017, which amends the Code of Criminal Procedure “to provide efficiency measures for the prosecution and punishment of crimes of corruption of public officials and crimes involving organized crime.” Specifically, with this change, the maximum duration of pretrial detention for “cases involving organized crime” is extended to 36 months of pretrial detention, which can be extended another 12 months. This changes what had been specified previously in the Code of Criminal Procedure, which only established a maximum duration of 18 months for “complex cases,” with a possible extension of an additional 18 months. Civil society organizations and the Human Rights Ombudsman’s Office have expressed their opposition to the longer time frames. Specifically, the Ombudsman’s Office said that this increase in pretrial detention is “excessive” and merely transfers “the investigation problems of the judiciary and the prosecutor’s office” to the accused. For its part, the IACHR reiterates that for the pretrial stage of criminal proceedings, as part of their policies to reduce overcrowding States should adopt “measures designed to reduce the use and duration of pretrial detention.” This is based on a technical understanding of the crime problem, effective operation of the criminal justice system, and general crime prevention strategies.
On another point, State authorities have informed the IACHR that the criminal process has been simplified through the regulation of expedited or summary proceedings, as one of the measures adopted by the Peruvian State to address the delay of justice and the excessive use of pretrial detention. Specifically, Legislative Decree No. 1194, which regulates summary proceedings involving in flagrante offenses, establishes the prosecutor’s obligation to initiate summary proceedings not only with regard to in flagrante offenses, but also cases involving failure to pay child support and cases of drunken driving. This differs from the process established in the 2004 Code of Criminal Procedure, which provided that for in flagrante offenses, the expedited process was initiated at the prosecutor’s discretion. According to official information, from 2006 to 2015, 406 cases were handled through summary proceedings; however, from the time Legislative Decree No. 1194 went into effect through August 2016, there were 33,886 cases associated with summary proceedings.
With respect to expedited proceedings carried out in Peru, the IACHR received information about the different impacts on due process which reportedly characterize such proceedings and allegedly lead to defendants being convicted in an “arbitrary” manner in order to reduce the excessive use of pretrial detention, on the basis of proceedings carried out “without sufficient guarantees and in a short period of time, which reportedly hampers the possibility of preparing an adequate defense.” For example, civil society representatives reported that even though the number of public defenders has gone up in recent years, there are still not enough of them to handle the high demand for summary proceedings as a result of the implementation of Legislative Decree No. 1194. The IACHR also received information about the rise in the number of confessions in the context of these proceedings. This is reportedly because in most cases, defendants—even if they claim to be innocent—opt for these proceedings, persuaded by their defenders to plead guilty given the possibility that the penalty will be reduced or that they will be released. Along these lines, the IACHR has indicated that under no circumstances should the practice of using pretrial detention be tolerated as a mechanism “to prod the detainee to self-incriminate and opt for a summary proceeding or plea bargain as a way to obtain prompt release.” Just as with the non-exceptional use of pretrial detention, such practices “are contrary to the very essence of the rule of law and the values that inspire a democratic society.”
Moreover, according to the information available to the Commission, the statistics provided by the judicial branch appear to be insufficient to determine whether these proceedings are carried out properly or whether they comply with the right to a fair trial guaranteed by due process. This is because they refer only to the number of expedited proceedings carried out, but no statistics are available on the number of proceedings that resulted in the application of an alternative measure or early closure of the case, pretrial detention, or a conviction. Given all of that, the Commission is concerned that while handing down convictions in the context of these proceedings reduces the number of people awaiting trial, it increases the number of people who are convicted.
The IACHR values the efforts made by the Peruvian State to address the problem of excessive use of pretrial detention through the use of an expedited proceeding or plea bargaining, which if applied correctly can be a successful tool in helping to reduce the number of prisoners, according to the European Court of Human Rights. The European Court has indicated that even though someone has waived the right to have his or her criminal case examined on the merits, fair-trial guarantees must be respected and, specifically, a plea bargain should be accompanied by the following conditions: a) the accused accepts the bargain in a voluntary manner, in full awareness of the facts of the case and the legal consequences; b) the decision reached is subjected to “sufficient judicial review.” In this regard, and in the context of the use of expedited proceedings, the IACHR calls on the Peruvian State to take the necessary steps to ensure that people are not subjected to proceedings that respond primarily to the motivation to reduce pretrial detention and that do not guarantee the accused an effective defense or ensure that he or she has voluntarily accepted the bargain in full awareness of the scope of the implementation of these procedures.
Measures Other Than Pretrial Detention
One of the main recommendations the IACHR made in its Report on the Use of Pretrial Detention in the Americas to rationalize the application of this measure—and thus reduce prison overcrowding—was to use precautionary measures other than pretrial detention. Specifically, the IACHR urged the States to properly regulate the use and application of alternative measures. In this context, the IACHR welcomes the reform to Peruvian law—by means of Legislative Decree No. 1229, issued in September 2015—that includes broader regulation of measures other than pretrial detention. Specifically, additional measures other than those previously included in the Code of Criminal Procedure are as follows: placing the person under the custody and care of a specified individual or institution; imposing an obligation not to leave the area of residence or visit certain places, or an obligation to report to a particular authority; prohibiting the person from communicating with or being in the vicinity of the victim or certain individuals; setting bail; and monitoring the person electronically.
One of the main alternative measures implemented by the Peruvian State to reduce the use of pretrial detention involves the application of electronic tracking devices in the criminal justice setting. In this regard, the IACHR observes that even though the concept of personal electronic monitoring was introduced through Law No. 29449 of 2010, legislative reforms in 2015 and 2017 established significant changes in its application. The IACHR was informed that, based on the decision adopted by the Special Commission on Implementation of the Code of Criminal Procedure, it was determined in a January 23, 2017, session that the Central Lima judicial district would be the first to implement a pilot plan on electronic monitoring, with 100 devices available. The choice of this district was based on the following factors: a) connectivity; b) percentage of prison population by judicial district that meets the requirements for admissibility under the law; c) number of prisoners residing in the judicial district where their cases belong; and d) prison population in a priority situation. According to information provided by the Ministry of Justice and Human Rights, currently 468 inmates have been identified by the INPE as potential candidates for the use of this measure.
The IACHR also notes that Decree No. 1322 of January 2017 determined that the person assigned the electronic monitoring device would be the one to bear “complete” responsibility for the cost. The exception is that if someone cannot afford the cost—based on INPE socioeconomic reports—the judge can waive the fee completely or partially. The same law also provides that a failure to pay the required fee results in “the revocation of the measure and indefinite incarceration” of the accused. In this regard, civil society organizations report that charging for these electronic devices constitutes a strict restriction on access to their use, and also discriminates against those who are not in a favorable economic situation.
For its part, the Commission believes that the application of this measure could be discriminatory when it is out of reach for people who have no access because they are living in poverty or do not make enough money. With respect to bail—the implementation of which raises similar challenges to electronic monitoring—the IACHR has recommended that States take the necessary steps to ensure that it is applied in a way that observes principles of material equality and does not constitute a form of discrimination against people unable to come up with the amounts set. Therefore, and in response to the standards this Commission has laid out on the matter of bail, if a cost is set for the use of the electronic devices, the authorities should properly justify the amount set in each case. In cases in which it has been established that the accused is unable to make bail, the Commission reiterates that States must use another precautionary measure that does not involve deprivation of liberty.
The IACHR was informed by the National Prison Council that the cost of using the electronic monitoring device amounts to 650 soles ($196) per month, while the cost of incarceration is reportedly 1200 soles ($365). Considering that fact, as well as States’ obligation to allocate the resources needed to make alternative measures operational, the Inter-American Commission calls on the Peruvian State to take the necessary steps to ensure that this alternative measure is available to as many people as possible, whether or not the beneficiary is able to make the payment stipulated in the law.
Finally, the IACHR values the provision in Decree No. 1322 that contemplates a special protection for certain groups at risk, such as women, people with physical disabilities, and the elderly. In this regard, the law contemplates a gender perspective by giving priority to pregnant women, women with children under 3 years of age, and, in the case of women “heads of household,” those who have a child who is a minor or a spouse or child with a permanent disability. This law also establishes priority application for people over 65 and people who are seriously ill or those with a permanent physical disability that restricts their movement. On this last point, considering that the body of law on the rights of people with disabilities understands disability from a standpoint that is not only physical but also intellectual, sensory, and mental, the Peruvian State should consider having this special protection also include different types of disabilities when the incarceration facilities do not have the reasonable adjustments that people with disabilities would require to exercise their rights on an equal basis as others.
A principal, autonomous body of the OAS, the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.