Peru

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LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

INTRODUCTION

Peruvian independence was declared in 1821. Democratic leadership was first established in 1980, amidst the violent insurgency of the Sendero Luminoso and economic difficulty. President Alberto Fujimori ruled from 1990 and began to instigate economic improvement and the effective combatting of guerrilla movements. However, a growing dependence on authoritarian tactics combined with economic struggle provoked dissatisfaction with his leadership and prompted his resignation in 2000. A provisional government held elections in 2001, leading to the Presidency of Alejandro Toledo Manrique. From 2006 Alan Garcia Perez returned as President, before Ollanta Humala Tasso took power from 2011.

Type of System

Peruvian law is based on the Civil Law system, written in codes via legislative enactment rather through legal precedent. It does not accept compulsory ICJ jurisdiction.

The Legal Aid Situation in Peru

There are free legal aid centres in 19 different towns and cities across Peru. There are more than 130,000 qualified lawyers in Peru [1].

Sources of Defendant's Rights

On 11 August, 1977, Peru signed and on 28 April 1978 ratified the International Covenant on Civil and Political Rights (the “Covenant”). As a party to this Covenant, Peru is bound to respect the civil and political rights contained therein. Specifically, Article 14 recognizes and protects a number of due process rights of the accused, including equality before the law; right to a fair and public trial by a competent, independent and impartial tribunal; right to be presumed innocent until proven guilty; right to notice of charges; right to a speedy trial; right to counsel; right to examine the witnesses against him; right against self-incrimination; right to appeal; and freedom from double jeopardy.[2].

PRE TRIAL PROCEDURES

Police Procedures

Complaint/information

Peruvian citizens are to lodge criminal complaints with the police at the station in the district in which the crime took place. It is possible to report a crime by phone, fax or email. A person can also report a crime to the on duty officer in the jurisdiction where a crime took place, or request that the police visit his/her residence before making a follow-up visit to the police station.

It is also possible to lodge a complaint with the Public Ministry’s Office and the Attorney General’s office. When a person files a complaint, it is not necessary to pay, nor to have a lawyer.

Arrest and detention

The police are permitted by law to detain an individual for investigative purposes. A written judicial warrant for arrest is required unless the individual is caught in the act of the crime. Those who are arrested must be charged within 24 hours, except in cases of terrorism, drug trafficking or espionage, where they may be detained without charge for up to 30 days. Military authorities must hand over those they arrest to the police within 24 hours. The police are required to file a report with the Public Ministry a maximum of 24 hours after the arrest. The Public Ministry then has a responsibility to issue its own assessment of legality of the police action in the arrest. Detainees are allowed access to a lawyer and family members, though the police may detain terrorists incommunicado for 10 days [3]

Illegal detention

Article 87 of the penal code states that someone who has been detained must be informed of any order given within 24 hours. If this does not happen, the detainee may lodge a complaint before a judge for arbitrary detention. If this complaint is judged to be valid, the court may order the freeing of the individual, or pass on the trial to another judge.

Identification procedures

Article 60[4] states that the police officers involved in the investigation of a crime must send to the investigating Judge a document containing all the information they have collected, indicating in particular the physical characteristics of the accused, their name and alias, occupation, current address and anything else necessary to identify them.

Right to Counsel

Article 121 of the penal code[5] states that, before the prosecution begins, the judge must inform the accused of his/her right to a defender, and that if he/she does not choose one, he/she will be assigned one. If there is no lawyer available, an honourable person must take the place of the lawyer. The accused has the right not to accept a lawyer, unless he is illiterate or a minor, in which case the judge may impose a lawyer upon the accused.

RIGHTS OF THE ACCUSED AT ALL TIMES

Criminal Law System

Procedure with witnesses

Article 141 of the penal code[6] states that the following persons cannot be obliged to testify against the accused:

  • Priests, lawyers, doctors and notaries with regard to secrets that may have been confided to them in the exercise of their profession
  • The spouse of the accused, his ancestors or descendants, brothers and sisters (in law)

The people hereby included should be warned of the fact that they have the right to refuse to testify. Witnesses will be asked for their name and surname, their nationality, age, religion, civil status, address, relationship to the accused or the defendent or whoever they are linked with in the trial, and they will be invited to state the facts that the judge considers relevant. If a witness does not speak Spanish, an interpreter will be provided. The testimony will be recorded in both Spanish and the original language. The interpreter has a duty to be faithful to the original speech. Witnesses asked to make a declaration orally in court have the right to compensation for the time they miss at work.

Enforcing the rules (nullity and other procedures)

When the sentence has been read, the defendant or the attorney may ask for nullity to be considered. This request may also be made in writing the following day. If the appeal for nullity is rejected, a complaint may be put to the supreme court.

Article 298 states possible causes for nullity:

  • When, during the trial, serious irregularities occur or standard processes and guarantees established by the law are omitted.
  • If the Judge or Jury were incompetent.
  • If the accused has been charged with a crime that was not the subject of the trial or the oral judgement, or if a crime for which the accused was put on trial has been omitted from either the charge or the trial.

In case of a declaration of nullity, the trial will be brought back to the point before the errors were committed.

Sentencing

Article 279 states that, once all submissions have been made, the magistrate will allow the accused to speak, so that he may express what he deems appropriate to his defense. After this, the hearing will be suspended so that the questions of fact and sentence may be voted upon. When the hearing reopens, which must be on the same day, the verdict and sentence will be read. The issuing of the sentence must not be delayed for more than 24 hours, or nullity may be declared.

Capital punishment

According to the Peruvian constitution[7], the death penalty may only be applied in exceptional circumstances such as treason or terrorism in times of war, in accordance with the laws and treaties to which Peru is a party.

Fair Trial Rights

Habeas Corpus

Article 240 of the Peruvian constitution[8] guarantees the rights of habeas corpus, meaning that an individual cannot be detained indefinitely without trial.

Other rights

The constitution of Peru[9] guarantees as a basic principle of the judicial systems due process rights to the accused. It sets as a basic principle that trials must be public, except where this contravenes the law. Other principles include:

  • an individual cannot be sentenced without trial
  • an individual cannot be sentenced in absentia
  • an individual must always have the right to defend himself in a trial
  • an individual must be informed, orally and by writing, of the charges against him
  • double jeopardy
  • defense to be provided for those of scarce resources

PRISON RIGHTS

The Peruvian constitution[10] holds as basic principles of its justice system that:

  • detainees and prisoners have the right to suitable establishments
  • penitentiary institutions should aim to re-educate, rehabilitate and reintegrate the offender

References



See Criminal Justice Systems Around the World


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