Committee against Torture

Concluding observations on the combined fifth and sixth periodic reports of Peru

Addendum

Information received from Peru on follow-up to the concluding observations *

[17 January 2014]

I.Background information

1.During the forty-ninth session of the Committee against Torture, held from 29 October to 23 November 2012, the Committee issued concluding observations on the combined fifth and sixth periodic reports of Peru (hereinafter the periodic report) under article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

2.In the periodic report, the Government described the measures taken to implement the provisions of the Convention.

3.In paragraph 26 of its concluding observations, the Committee requested the State party to provide, by 23 November 2013, follow-up information in response to the Committee’s recommendations relating to:

(a)Conducting prompt, impartial and effective investigations;

(b)Ensuring or strengthening legal safeguards for persons detained;

(c)Prosecuting suspects and sanctioning perpetrators of torture or ill-treatment;

(d)Amending the general prohibition to permit therapeutic abortion and abortion in cases where pregnancy resulted from rape or incest;

(e)Allocating sufficient financial and human resources for the implementation of the Comprehensive Reparation Plan.

4.In order to respond to the request for information, the relevant institutions and bodies were asked to provide updated information regarding the issues raised. Accordingly, the State party wishes to inform the Committee of the following.

II.Response to the Committee’s request for information

A.Concerning the conduct of prompt, impartial and effective investigations (concluding observations, para. 8 (a))

1.Impartial investigation of complaints

5.As noted in the periodic report (CAT/C/PER/6, para. 13), the Public Prosecution Service, in its capacity as the initiator of criminal proceedings, is the authority responsible for investigating alleged torture offences. It carries out its functions through the Special Prosecutors and the National Criminal Prosecutor’s Office, which have the authority to handle cases of human right violations.

6.With regard to the Committee’s concern about the investigation of torture and ill-treatment cases, it should be noted that the Public Prosecution Service is an independent body (art. 158) that is governed strictly in accordance with the principle of legality and is subject to the Constitution, the law and the international treaties to which Peru is a party, as stipulated in the fourth Final and Transitional Provision of the Constitution.

7.The independence of the Public Prosecution Service guarantees its impartiality — the guiding principle of its operations — from the opening of an investigation to indictment. It is an ongoing concern of the State that the operation of its independent institutions and bodies reflect respect for basic rights and the proper administration of justice. To this end, the Public Prosecution Service encourages its prosecutors and administrative staff to participate in academic events and training relating to human rights violations and has also authorized the participation of the coordinating prosecutor, senior prosecutors, provincial prosecutors, assistant provincial prosecutors and other members of the specialized subsystem.

8.At the investigative stage, the Public Prosecution Service investigates offences in close cooperation with the national police, in response to complaints filed with either the Public Prosecution Service or the national police at any station in the country. Moreover, either of these authorities may launch an investigation when the commission is suspected of an offence.

2.Concerning promptness and effectiveness of investigations

9.It should be noted that the new Code of Criminal Procedure was enacted in 2004 with a view to simplifying the criminal process in order to ensure that all complaints, including complaints of torture, are processed effectively and within a reasonable period. The Code guarantees the prompt investigation of all criminal cases, including cases of alleged torture and ill-treatment.

10.The right to due process and the right to effective judicial protection are enshrined in the Constitution. Mindful of these rights, the State seeks to ensure that the accused fully enjoy their right to legal representation during the entire process, from police and court investigations to trial.

11.The system of guarantees underlying the Code also establishes the obligation of the national police, prosecutors and judges to inform accused persons of their rights promptly and clearly.

B.Application or strengthening of the fundamental legal safeguards of persons deprived of their liberty

1.Ensuring that persons deprived of their liberty enjoy fundamental legal safeguards before and during their detention

12.With regard to the Committee’s concern relating to individuals’ legal safeguards from the outset of detention, it should be noted that the new National Police Act (Legislative Decree No. 1148 of 10 December 2012), which stipulates that the mandate of the national police includes ensuring the population’s protection, safety and free exercise of their basic rights, was adopted as part of the police reform process.

13.A bill regulating the Act was submitted through Ministerial Resolution No. 1377-2013-IN of 11 October 2013 and sets forth guidelines for police officers in dealing with persons deprived of their liberty. Article 135 contains the following provisions:

“ Article 135 – Functions of the Prison Safety Directorate

The functions of the Prison Safety Directorate shall be as follows:

(a)To provide external security services for prisons and, in extraordinary cases, the administration or internal security;

(b)To support the administration of justice by executing judicial orders for the movement or transfer of detained defendants and/or convicts to courtrooms for trials and other proceedings;

(c)To re-establish order and authority in prisons when changes disrupt the normal course of activities;

(d)To implement judicial orders for house arrest in accordance with the law;

(e)To provide security and protection to police personnel detained in centres for police offenders;

(f)To guard convicts and defendants who are hospitalized outside prison;

(g)To provide support to the National Prison Institute when required;

(h)To provide ongoing training, specialized courses and refresher courses to staff, in coordination with the Executive Directorate for Education and Doctrine;

(i)To prepare its operational plan and corresponding budget;

(j)To carry out any other tasks assigned or delegated to it by the Executive Director of Security.”

14.The Ministry of the Interior, through its specialized agencies, has included as an ongoing activity in its 2013 operational plan the provision by police instructors of training in human rights in the context of police work, with a focus on the use of force in the context of international standards, crowd control techniques and torture prevention.

15.Lastly, the new code of conduct of the national police, adopted by means of Legislative Decree No. 1150 of 10 December 2012, sets out administrative disciplinary rules and procedures aimed at preventing, regulating and punishing offences committed by members of the national police.

16.Given that national legislation must be in line with the treaties to which Peru is a party, penalties have been established for the serious offences of “exceeding one’s authority through unnecessary or disproportionate use of force while in service, causing grievous bodily harm” and “mistreating restrained or detained individuals, causing bodily harm”. The “commission of acts of torture against persons in one’s custody” has also been categorized as a very serious offence, warranting the dismissal of the offending police officer.

2.Ensuring that persons deprived of their liberty enjoy fundamental legal safeguards in prison

17.Peruvian law recognizes access to the protection of the prison ombudsman as one of the safeguards of the rights of persons deprived of their liberty. The Ombudsman’s Office has a unit for the protection and defence of persons deprived of their liberty.

18.Pursuant to the Organic Act organizing the Public Prosecution Service (Legislative Decree No. 052), prosecutors are obliged to visit detention centres to observe detention conditions. They have the authority to receive reports and/or complaints formulated by persons deprived of their liberty.

19.The Directorate-General of the Public Defender Service and Access to Justice of the Ministry of Justice and Human Rights is responsible for providing free technical legal assistance of a high standard to low-income and vulnerable individuals, including persons deprived of their liberty, thereby safeguarding the basic rights and procedural guarantees to which they are entitled under the Constitution and treaties.

20.Given this responsibility and the goal of ensuring that persons deprived of their liberty benefit from judicial guarantees, the Directorate-General of the Public Defender Service and Access to Justice has 31 district-level offices distributed proportionally among the nation’s high courts. In order to fulfil its mandate, it has 1,354 staff throughout the country who provide free technical defence services and legal representation to low-income individuals.

21.In order to ensure that public defenders provide quality services, they receive regular training in subjects relating to the Code of Criminal Procedure, criminal investigations, criminology, litigation techniques and constitutionality suits. Between January and August 2013, some 44 courses were offered throughout the country to 964 public defenders with a view to enhancing their performance duties.

22.The schedule of public defenders is organized so that services can be provided 24 hours a day, thereby ensuring that individuals can obtain the advice they need from the moment they are detained.

23.With regard to the Committee’s concern for the fundamental legal safeguards of persons deprived of their liberty, it should be noted that, in addition to the district offices, there are also public defenders in the country’s prisons who provide free technical legal assistance. Between January and August 2013, public defenders conducted 152,801 consultations in prisons across the country and provided legal representation to persons deprived of their liberty on 78,149 occasions.

24.In addition to their advisory and representational work, public defenders also give talks and engage in efforts to obtain benefits for low-income detainees, efforts that have benefited 2,802 detainees in the country’s various prisons. Some 3,837 persons deprived of their liberty have attended talks on prevention.

25.In 2013, the National Centre for Criminology and Prison Studies of the National Prison Institute held various training events and workshops dealing with human rights in the context of prisons for prison officers and staff. These events were carried out in cooperation with the regional delegation of the International Committee of the Red Cross for Bolivia, Ecuador and Peru in Lima.

26.The workshops and courses were offered both in Lima and in prisons in the interior (e.g. Trujillo, Andahuaylas, Abancay, Huánuco, Iquitos, Ica, Juliaca, Lampa, Puno and Huacho).

Table 1

Workshops and courses offered in 2013

No.	Title of the event	Location	Attendance	Date
1	Second refresher workshop for human rights instructors	Lima	41	21–25 January
2	Third human rights instructor training course	Lima	33	25 February–22 March
3	Course/workshop on assessing human rights in the prison service	Picsi Prison	105	17–19 April
4	Course/workshop on assessing human rights in the prison service	Trujillo Prison	125	24–26 April
5	Third Regional Human Rights Day	Andahuaylas Prison	40	27 May
6	Third Regional Human Rights Day	Abancay Prison	47	28 May
7	Prison staff and human rights	Chorrillos Prison Annex	55	30 May
8	Workshop on reorganizing human rights work in prisons	Huánuco	142	5–7 June
9	Workshop on reorganizing human rights work in prisons	Pucallpa	137	10–12 June
10	Workshop on reorganizing human rights work in prisons	Iquitos	57	17 and 18 June
11	Workshop on reorganizing human rights work in prisons	Ica	91	20 and 21 June
12	Workshop on reorganizing and modernizing human rights work in prisons	Lurigancho Prison	183	24–26 June
13	Workshop on reorganizing human rights work in prisons	Juliaca Prison	42	20 August
14	Workshop on reorganizing human rights work in prisons	Lampa Prison	40	21 August
15	Workshop on reorganizing human rights work in prisons	Puno Prison	131	22 August
16	Workshop on reorganizing human rights work in prisons	Huacho Prison	90	21–23 August
17	Workshop on reorganizing human rights work in prisons	Ancón Prison I	153	15–17 August
18	Workshop on reorganizing human rights work in prisons	Huaral Prison	118	23–25 August
19	Workshop on reorganizing human rights work in prisons	Lima Prison	127	18–20 August
Total number of officers and staff receiving training	1 757

27.Knowing that legal safeguards imply respect for and full exercise of basic rights whose enjoyment cannot be curtailed by the deprivation of liberty, the State, through the National Prison Institute, has concluded a series of agreements with various institutions to work on issues relating to the human rights of persons deprived of their liberty. These agreements promote the right to education (literacy, reading through libraries, the recruitment of teachers for prison schools), the right to religious freedom, the right to work (vocational training, courses on entrepreneurship), the right to due process and access to justice (establishment of interview rooms in prisons and setting up of videoconferencing), the right to an identity and the right to vote (campaigns to provide identity documents).

Table 2

Agreements regarding persons deprived of their liberty

No.	Agreement	Date	Rights of persons deprived of their liberty addressed
1	Inter-agency cooperation agreement between Fe y Alegría and the National Prison Institute	22 February 2013	Right to education (literacy)
2	Inter-agency cooperation agreement between the National Library and the National Prison Institute	14 March 2013	Right to education (reading through libraries)
3	Inter-agency cooperation framework agreement between the Human Rights Commission and the National Prison Institute	20 September 2013	Human rights in prisons (course for prison staff)
4	Inter-agency agreement between the Diocese of Lurín and the National Prison Institute	20 February 2013	Right to freedom of religion (pastoral care)
5	Inter-agency cooperation framework agreement between the Peruvian Christian Pentecost Church World Missionary Movement and the National Prison Institute	27 May 2013	Right to freedom of religion (pastoral care)
6	Inter-agency cooperation framework agreement between the Ministry of Education and the National Prison Institute	24 May 2013	Right to education (assignment of teachers to prison schools)
7	Amended inter-agency cooperation framework agreement between the Ministry of Labour and Promotion of Employment and the National Prison Institute	2 December 2013	Right to work (vocational training)
8	Inter-agency cooperation framework agreement between the Ministry of Production and the National Prison Institute	3 July 2013	Right to work (entrepreneurship training)
9	Inter-agency cooperation framework agreement between the Judiciary and the National Prison Institute	3 May 2013	Due process and access to justice (establishment of interview rooms in prisons, videoconferencing)
10	Inter-agency cooperation framework agreement between the National Registry of Identification and Civil Status and the National Prison Institute	5 April 2013	Right to an identity and to vote (campaigns to issue identity documents)
11	Inter-agency cooperation framework agreement between the company Renzo Costa S.A.C. and the National Prison Institute	28 December 2012	Right to work (jobs in Ancón Prison II)

28.In cooperation with the Ministry of Justice, a course for human rights instructors on good prison practices was given to instructors and teachers working in prisons. Course objectives included increasing awareness of the rights to be upheld in prisons and incorporating human rights in the job description of prison officers to ensure that they observed them in their duties.

29.Thirteen good prison practices were discussed during the course, relating to such topics as the prohibition against torture, ill-treatment and cruel, inhuman or degrading treatment, as enunciated in relevant international instruments as well as the proportionality and forms of punishment; respect for due process and judicial guarantees in the corrections system; and promotion of the right of persons deprived of their liberty to a defence.

C.Bringing perpetrators of torture and ill-treatment to justice and punishing them (concluding observations, para. 8 (a))

30.In response to the Committee’s concern about the punishment of perpetrators of torture, updated data have already been provided regarding the number of proceedings launched by the judiciary in this area through 2011 (CAT/C/PER/6, paras. 17–20). Information updated to 2013 is provided below, pursuant to the Committee’s request.

31.In 2012, the National Criminal Court ruled on seven torture cases. Of these, one ended in conviction, four in acquittal and two were resolved through other procedural mechanisms.

32.Between January and September 2013, the National Criminal Court ruled on 19 torture cases, 5 of which ended in conviction and 14 in acquittal. The following figure provides a comparison for the period 2009–2013.

Figure 1

Annual number of cases concluded, convictions and acquittals

AcquittalsOtherTotal cases concludedConvictionsTotal cases concludedConvictionsAcquittalsOther

33.While the Committee may be concerned at the number of convictions handed down pursuant to national legislation, there is no doubt that criminal proceedings strictly uphold the basic rights of the accused in accordance with the rules governing due process and effective legal representation.

34.The Government is fully mindful of its international obligations and the importance of prevention efforts by States parties in avoiding the torture and cruel, inhuman or degrading treatment of persons deprived of their liberty; accordingly, it is considering designating the Ombudsman’s Office as the national preventive mechanism.

35.In this connection, Congress is working on bill No. 1618/2012/CR, on the establishment and operations of the national preventive mechanism, in keeping with the provisions of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Peru ratified in 2006.

36.The establishment of the national preventive mechanism will make it possible to conduct preventive visits to centres where persons deprived of their liberty are held or may be held with a view to ascertaining whether or not their rights are fully protected and ensuring that legal safeguards are strengthened.

37.On 10 December 2013, the congressional Justice and Human Rights Committee approved the bill establishing the national preventive mechanism in Peru. The bill will be submitted to Congress for discussion and adoption once ordinary sessions resume in March 2014.

38.These are some of the legislative, judicial and administrative measures that Peru has taken in fulfilment of its international obligations to prevent acts of torture throughout the country.

D.Amendment of the general prohibition against abortion to allow therapeutic abortion and abortion in cases of pregnancy resulting from rape and incest, and provision of free health coverage in cases of rape (concluding observations, para. 15 (a))

39.Abortion is an offence under the Criminal Code, except for therapeutic abortion, which is explicitly decriminalized. Article 119 of the Code stipulates that an abortion carried out by a doctor with the consent of the pregnant woman or her legal representative shall not be punishable when it is the only means of saving the mother’s life or of preventing serious and permanent damage to her health.

40.Therapeutic abortion has not been a criminal offence in Peru since 1924. This decision resulted from lawmakers choosing between two potentially conflicting constitutional arguments: the right to life of the foetus, on the one hand, and the right to life and to health of the mother, on the other.

41.After weighing the arguments, lawmakers decided that, when such cases arise and the mother’s consent and the doctor’s opinion have been obtained, the mother’s right to life as well as health must prevail; in the latter case, a credible risk of serious and permanent damage to the mother’s health must exist. In these circumstances, abortions performed by a doctor are considered appropriate.

42.Thus, therapeutic abortion is permitted in Peru, and regional guidelines for its practice exist in certain hospitals.

43.In April 2013, the Ministry of Justice and Human Rights submitted to the Ministry of Health, as the competent authority, its opinion regarding the technical and legal aspects of preparing a national technical manual standardizing the criteria for the comprehensive management of voluntary, medically advised terminations of pregnancy with informed consent up to 22 weeks’ gestation, as provided for in the Criminal Code and current laws.

44.Under article 119 of the Criminal Code abortion is permitted, under certain conditions, when it is the only means of saving the mother’s life or of preventing serious and permanent damage to her health, and it is absolutely constitutional. Although the practice restricts the foetus’ fundamental right to life, it passes the proportionality test insofar as it achieves a constitutionally valid purpose in an adequate, necessary and strictly proportional manner.

45.Given that the purpose of therapeutic abortion is to protect the mother’s fundamental right to life and health, a mother has a fundamental right, provided that the conditions stipulated in article 119 of the Criminal Code are met, which the State shall guarantee while ensuring that termination of pregnancy takes full consideration of the mother’s life, health and dignity. The adoption of the technical manual, which is in the consultation phase, will ensure both the right to equality before the law and legal certainty.

46.The Government takes note of the recommendation to extend permissible abortion to other cases not provided for in article 119 of the Criminal Code, but points out that any amendment to the Criminal Code must be considered and adopted by Congress.

47.As mentioned in the sixth periodic report, the Technical Comprehensive Services Unit of the National Programme to Combat Domestic and Sexual Violence handles, defends and assists with sexual violence complaints free of charge with a view to ensuring the criminal prosecution of perpetrators of such violence, in cooperation with women’s emergency centres, which provide analysis and expertise for use as evidence by justice officials to support and enhance investigations.

E.Concerning the allocation of sufficient financial and human resources to ensure the full and timely implementation of the Comprehensive Reparation Plan and the increasing of the amount of economic reparation provided to ensure that it covers all the persons concerned (concluding observations, para. 17 (b))

48.The reparation system in Peru consists of the Reparations Council, which has responsibility for the Central Register of Victims, established pursuant to Act No. 28592, and of the High-level Multisectoral Commission charged with monitoring State actions and policies in the areas of peace, collective reparation and national reconciliation, established pursuant to Supreme Decree No. 011-2004-PCM.

1.Reparations Council

49.The Council is responsible for the Central Register of Victims, both individual and collective, of the violence that occurred between May 1980 and November 2000, in keeping with the period established in the findings and recommendations of the report of the Truth and Reconciliation Commission. As at December 2013, a total of 188,417 individual victims (volume I) and 5,743 collective victims (volume II) were registered.

50.In May 2013, the Official Gazette, El Peruano, published a list of over 20,000 persons whose inclusion in the Central Register is pending. If the lack of information can be rectified, the Central Register could include up to 200,000 persons.

2.High-level Multisectoral Commission

51.Pursuant to Act No. 28592 and its regulations, contained in Supreme Decree No. 015-2006-JUS as amended by Supreme Decrees Nos. 003-2008-PCM and 047-2011-PCM, the State established the Comprehensive Reparation Plan for victims of the violence that occurred between May 1980 and November 2000. The Plan includes reparation schemes, both symbolic and collective, in the areas of health, education, restoration of civil rights, economic reparations and promotion and access to housing.

52.The Plan also recognizes the right of victims to reparation and, accordingly, the obligation of the central, regional and local governments to implement the Plan swiftly, guided by the principles of timeliness, non-discrimination and effective reparation. Details about the reparations process undertaken so far by the High-level Commission can be found in the following section.

3.Educational Reparations Programme

53.Noteworthy elements of this programme include:

(a)The Multi-year Educational Reparations Plan 2014–2017 was designed by the Ministry of Education on the basis of the general guidelines of the Educational Reparations Programme approved by the High-level Multisectoral Commission. This management tool will address the various educational needs of victims of the violence. The Plan is in the final approval stage;

(b)The REPARED scholarship was established by the Ministry of Education, in coordination with the High-level Multisectoral Commission, to finance in full the university or technical career training of recipients registered in the Central Register of Victims. Between 2012 and 2013, some 227 scholarships were awarded, amounting to a Government expenditure of 18 million nuevos soles (approximately 6,428,571 US dollars).

54.In 2014, pursuant to Administrative Decision No. 306-2013-MINEDU-OBEC-PRONABEC of 13 December 2013, the National Scholarship Programme (PRONABEC) organized a competition for 200 full scholarships. This project involved:

(a)A piloting programme for literacy and primary education completion: 2,277 recipients in the regions of Ayacucho, Junín, Apurímac, Cusco and Huancavelica, which were the areas most affected by the violence and are currently the focus of social inclusion programmes;

(b)Reserving places in public universities: 745 recipients in 15 regions of the country, awarded in branches of the social sciences and the humanities, including medicine, civil engineering, dentistry, law and tourism;

(c)Reserving 5 per cent of places in technical institutions for recipients of the Comprehensive Reparation Plan: approved pursuant to Directorate Decision No. 377-2012-ED, which also provides for exemption from admission exams and enrolment fees;

(d)Awarding of scholarships to teacher training institutions: established pursuant to Ministerial Decision No. 0046-2013-ED of the Ministry of Education, these scholarships involve exemption from enrolment and tuition fees, from the time of admission to completion of the degree. In 2013, some 50 scholarships were awarded to teacher training institutions including: the Manuel Gonzales Prada School in Lima, Nuestra Señora de Lourdes Institute in Ayacucho, José María Arguedas in Andahuaylas and the Gamaniel Blanco Murillo Institute in Cerro de Pasco.

4.Health Reparations Programme

55.Highlights of this programme include:

(a)Health Reparations Plan: the technical regulations pertaining to the Plan are being drafted by the Ministry of Health based on the general guidelines of the Educational Reparations Programme approved by the High-level Multisectoral Commission. This management tool will address the various educational needs of victims of the violence. The Multi-year Plan is in the final approval stage;

(b)Enrolment in the comprehensive health insurance scheme: 139,296 individuals (out of 146,705 health recipients listed in the Central Register of Victims) have been collectively enrolled in the subsidized component of the comprehensive health insurance scheme, which provides national coverage for all types of illness, including cancer, as well as subsidies for burial costs;

(c)Mental health care services have been provided to 44,819 recipients listed in the Central Register of Victims. In addition, in 2013, the High-level Multisectoral Commission supervised the Mental Health Directorates in Ayacucho, Junín, Huancavelica, Apurímac, Huánuco, San Martín, Cusco, Puno and Ucayali;

(d)Training: 1,150 civil servants and staff of the Ministry of Health have received training in the Comprehensive Reparation Plan and the comprehensive health insurance scheme for victims of the violence.

5.Economic Reparations Programme

56.Awarding of economic reparations to individuals registered in the Central Register of Victims: from 2011 to 2013, some 41,606 recipients listed in the Central Register of Victims received economic reparations; these included relatives of deceased or disappeared victims, victims of rape and victims suffering from a permanent physical or mental disability resulting from an event related to the violence. Recipients received assistance in the amount of S/. 166,192,621.45 (approximately $59,354,507.66). See table 3 below.

Table 3

Number of recipients and amount s disbursed under the Economic Reparations Programme

Year	Number of recipients	Amount disbursed ( nuevos soles)	Value ( US dollars)
2011	1 878	11 161 845.24	3 986 373.30
2012	15 774	96 088 029.19	34 317 153.28
2013	23 954	58 942 747.02	21 050 981.08
Total	41 606	166 192 621.45	59 354 507.66

57.Pursuant to Act No. 29979 of 15 January 2013, priority for receiving payments is no longer determined by age (parents over the age of 80; widows, rape victims and persons with disabilities over the age of 65), a criterion that had been seriously challenged by victims’ and human rights organizations, but instead by the date on which the incident occurred.

58.The new criterion broadens the scope of the Economic Reparations Programme by ensuring that reparation covers the entire family unit affected by a person’s death or disappearance. Moreover, provision has been made to give priority, on an exceptional basis, to persons with disabilities and adults over 60.