31 October 2012
The Committee against Torture this afternoon heard the replies of Peru to questions raised by Committee Experts on the sixth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to questions raised by Committee members on Tuesday, 30 October, the delegation of Peru, which was led by José Avila Herrera, Vice-Minister for Human Rights and Access to Justice of Peru, explained that the state of emergency in Peru was restricted to areas where the Sendero Luminoso movement was still operating. This territory may seem vast as it spanned 66 districts, but as a matter of fact it only represented 3.6 per cent of all municipalities. Addressing questions about torture in the context of the armed forces, the delegation flagged that the Ministry of Defense had set up offices of assistance for military staff. Armed personnel who felt that they had been victims of torture could receive assistance there. Torture was not subject to the statute of limitations. It was considered a serious human rights violation and, in accordance with the Rome Statute, was considered a crime against humanity.
The delegation of Peru consisted of representatives from the Ministry of Justice and Human Rights, the Ministry of Foreign Affairs, the Ministry of Defence, the Interior Ministry, the Health Ministry, the Office of the Public Prosecutor and the Permanent Mission of Peru to the United Nations Office at Geneva.
The Committee’s concluding observations and recommendations on the report of Peru will be issued towards the end of the session, which concludes on 23 November.
The Committee’s next public meeting will be at 10 p.m. on Thursday, 1 November when the Committee will consider the seventh periodic report of Norway (CAT/C/NOR/6-7).
Response of the Delegation of Peru
Responding to questions raised on Tuesday, 30 November, the delegation of Peru said the draft law on corporal punishment against children protected the physical well-being of all children. If subjected to mistreatment, a child could be withdrawn from his or her parents, and the criminal code sanctioned injuries against a child as an aggravating factor. The new legislation was currently before congress.
There was also a draft bill in the executive which designed and established sanctions for torture. But recently, a new draft bill with the same design had been submitted. The executive would thus attempt to seek out a consensus for the legal wording so as to define the allocation of resources to ensure the functioning of the mechanisms.
The delegation indicated that the situation of women deprived of their liberty was always tricky to deal with as they were in vulnerable situations in prison. The penitentiary administration was relocating the population of female inmates to ensure appropriate conditions, which involved building a prison. In Lima, where overcrowding of female prisoners was worrying, it would be possible, thanks to this restructuring, to reduce the issue of overcrowding among imprisoned women. Likewise, there were programmes so that children imprisoned with their mothers enjoyed similar conditions as when in liberty.
The Government had adopted a policy on the 10 important measures for penitentiary facilities. This was not merely a document; important decisions and efforts had already been made, including the expansion of detention infrastructures and the strengthening of penitentiary security.
As to why statistics showed a high level of complaints of torture, but also high levels of acquittal, the delegation said that not all of the cases that the public prosecutor presented as torture to the judiciary sufficed to the pre-requisites for such a judicial qualification. However, when a conviction was handed down, there was a punishment as set forth in the penal code. Proceedings took place in accordance with standards of due process, the delegation assured.
The Public Prosecutor’s Office in 2007 set up a programme for victim and witness support as part of a comprehensive reform. The new code of criminal proceedings described the status of the victims, upgraded it, and provided compensation for the victims. This year, from January to August, attendance had been provided to over 23,000 persons, over 20,000 of whom were victims.
All allegations of torture went to the institute for forensic medicine, the delegation noted. The institute had the capacity to carry out psychological assessments and, since 2010 it had a specialized team which was active throughout the territory. The Istanbul Protocol was being used in all cases involving allegations of torture.
The state of emergency was only used in exceptional circumstances to ensure the security and the fundamental rights of citizens, and it was restricted to areas where the Sendero Luminoso movement was still operating. The territory where the state of emergency was used may seem vast, given that it spanned 66 districts of the provinces of Ayacucho, Huancavelic, Cuzco, Junin, Huanuco, San Martin and Ucayali. However, this represented only 3.6 per cent of all municipalities which, in addition, were scarcely populated. It should also be noted that during such times human rights were not lifted; they were merely restricted and authorities could at all times verify the appropriate implementation of the state of emergency.
The office of the national prosecutor in 2012 called for the re-opening of investigations into forced sterilization, a matter which had been closed earlier, after hearing from women’s groups saying their complaints had not been investigated. The Committee would be kept informed of the outcomes of these proceedings, said the delegation.
Lesbian, gay, bisexual and transgender people were better protected now than a couple of years ago, the delegation went on to say. Legislative improvements had led to qualitative progress which could not have been ensured in Peru before. The principle that nobody must be discriminated against on the basis of his or her sexual orientation was enshrined in legislation adopted in 2004. This was enormously important as it would guide the jurisprudence of the Constitutional Court and, consequently, public administration and state policies.
Addressing questions about torture in the context of the armed forces, and when military justice was applied for human rights violations, the delegation flagged that the Ministry of Defense had set up offices of assistance for members of the military. Armed personnel who felt that they had been victims of torture could receive assistance there. It was the competence of regular courts to investigate torture, not military courts, and accordingly, complaints were investigated by the provincial prosecutor’s office.
The military did not refuse to cooperate. Peru had gone through a period of violence and the procedures used 20 years ago had at times been abused. Nonetheless, everything possible was being done to carry out appropriate investigations and punish those responsible. A new framework had been established to appropriately document military activities, requiring commanders to report the events of each and every military operation. Members of the armed forces who made use of their firearms must report to their superiors immediately after and there was neither impunity nor exemption of responsibility.
Torture was not subject to the statute of limitations. Torture was considered a serious human rights violation and, in accordance with the Rome Statute, was considered a crime against humanity. It must be highlighted that the Supreme Court of Justice convicted the ex-President Fujimori in 2009 on the standards of jus cogens.
Peru provided one of the best levels of protection for indigenous populations. This commitment could be seen in several aspects: Peru led the negotiations which culminated in the adoption of the United Nations Declaration on the Rights of Indigenous Peoples; it was among the 22 countries that had ratified Convention No. 169 of the International Labour Organization on indigenous people; and it was the only country with a law on the consultation of indigenous peoples. The national constitution furthermore protected the land of indigenous communities, their cultural identity and their way of administering justice. Against this backdrop, it could be said that Peru was part of the avant-garde of protection in this field.
The delegation noted that forced labour and slavery was being tackled through various measures, including through the national commission for the fight against forced labour. The commission, in collaboration with the International Labour Organization, was currently elaborating the country’s 2012-2016 national plan on the fight against forced labour. Simultaneously, employers using forced labour or human trafficking to this end could be fined up to $ 27,000 thanks to new legislation introduced in 2011. The delegation hoped that, in implementing the national plan of action against human trafficking, public sector entities were undertaking the necessary measures to tackle forced labour.
The delegation confirmed that the reasonable and proportional use of force was a characteristic of the institutional culture of the law enforcement personnel. The policy on operations aiming to control, maintain and re-establish public security guaranteed people’s fundamental rights. There were no legal dispositions exempting police from their responsibility; all police staff was subjected to the relevant international standards. Following several cases in which excessive force had been used in 2011, the police leadership made it clear that all action must conform to national and international texts regulating the use of force. In the aftermath of these events, the national police curriculum had also been revamped so as to include training on human rights.
Follow-Up Questions from Experts
NORA SVEAASS, Committee Expert and Rapporteur for the Report of Peru, wondered about the exact reasons for acquittals in the absence of proof. The statistics were not entirely convincing, she said, underlining that these were acts of torture committed recently and not way back in the past.
It would also be helpful to receive the exact reference to the case where rape had been considered an act of torture, she said, also noting that many laws had been in a draft status for a long time.
The high number of irregular abortions in Peru was a further source of concern, notably as these were very dangerous for women.
The Committee had been informed that most children in alternative care were replaced because of violence in their homes, which pointed to the importance of monitoring, preventing and reacting to violence against children.
Peru had decided to look into the sentences handed down during the 1990s by faceless or masked judges – how was that process coming along?
XUEXIAN WANG, Committee Expert and Co-Rapporteur for the Report of Peru, congratulated the delegation for having received only 75 questions yesterday – many delegations received far more. There had been answers to almost all questions.
One question was not entirely answered, however. According to the delegation, pre-trial detention was only resorted to in exceptional circumstances under the new penal code. So could the delegation inform the Committee whether there had been any cases of pre-trial detention since the new penal code had entered into force, Mr. Wang wondered, saying this would allow assessing the efficacy of the new code.
Clarifying the fate of missing persons was time-consuming and money-consuming, the Co-Rapporteur acknowledged, saying Peru had achieved much in this regard and encouraging the country to continue its endeavours.
Another Committee Expert noted that the Special Rapporteur on Torture, Juan Mendez, had requested that Peru stop the practice of solitary detention given the irreversible physical and psychological damages it could cause. The conditions of detention in one particular prison, which was situated at 4,600 meters of altitude, where temperatures could go as low as -25°C, was also a source of concern. According to non-governmental organizations, these conditions had led to the death of several detainees.
Response by the Delegation
The delegation indicated that the amount of economic reparations given to victims of violence was currently 10,000 sols and associations of victims demanded that this be increased to 35,000 sols. The Ministry of Justice had taken note of this request and studies were currently being conducted to determine whether it was possible to accommodate this request.
With a view to respecting the recommendation of the Special Rapporteur on torture, a study would be conducted to analyze the impact of solitary confinement measures as a disciplinary sanction, the delegation further indicated.
The conditions of detention in the specific prison which had been mentioned would be assessed to make sure that they complied with relevant standards.
The delegation assured that there were no more trials presided over by faceless judges. This was practiced solely under the rule of former President Fujimori. After his reign, faceless judges had been ruled unconstitutional and their findings had been dismissed, in observance of international standards.
The delegation assured that preventive detention was an exceptional and provisional measure. It could not last for more than 18 months, except in cases involving serious crimes, such as terrorism, rape of minors or drug trafficking, when it could be prolonged to up to 36 months. The criteria of the new procedural penal code were even stricter; the procedure was faster and, therefore, the practice of preventive detention was reduced to no more than nine months.
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