Peru Table of Contents
Peru's penal code in force in 1991 was the much amended 1924 code and addressed itself primarily to common crime as opposed to political violence. It was expected to be replaced in 1992 by new statutes that were announced in initial form in April 1991. The amended 1924 code's four volumes dealt with general provisions, descriptions of felonies, descriptions of misdemeanors, and application of punishment. Felonies were divided into categories: crimes against the person, the family, or property; crimes against the state, public security, and public order; and crimes of moral turpitude. Punishments included jail, loss of rights, loss or suspension of employment, fines, probation, and warnings.
The proposed new penal code was intended to bring Peruvian law up to date and to make it internally consistent. The legal inconsistencies resulting from the many amendments over the years, under both civilian and military rule, had produced a very unwieldy legal framework. Major changes included specifying white collar crimes; expanding punishment to include community service; considering society's responsibility in the commission of crimes by less advantaged individuals; emphasizing the possibilities for rehabilitation; specifying economic crimes by monopolies, misuse of public funds, and tax evasion; incorporating much more severe penalties for drug trafficking, terrorism, and human rights violations; and considering as crimes damage to the environment, natural resources, and the ecology. The new code was to be subject to a national debate by interested parties, as well as a review by Congress before going into effect in 1992. The Fujimori autogolpe of April 5, 1992, changed this timetable. In the following month, it produced a plethora of decree-laws, which responded to a number of these issues, particularly those related to criminal activity and terrorism. The Democratic Constituent Congress (Congreso Constituyente Democrático) elected in November was to incorporate or adjust these decrees. The fate of the proposed code was unclear, but probably was postponed until after the full return to constitutional rule scheduled for April 1993.
The constitution of 1979 abolished the death penalty administered by firing squad, even though it had seldom been invoked (only twelve times between 1871 and 1971). The exception was Article 235, which allowed for the death penalty for the crime of treason during a war with an external enemy. In the 1970s, the military government (1968-80) had gradually expanded the list of crimes subject to the death penalty, including killing a member of the police, killing during a robbery, and mass killing. At least seven individuals were put to death on conviction under these statutes. The issue of the use of military and police rather than civilian courts to try citizens, with no right to appeal to civilian judicial authority, also came up frequently during the military regime. Article 282 of the constitution of 1979 dealt with this difficulty by prohibiting application of the Code of Military Justice to civilians except for treason.
Other provisions of the constitution of 1979 also emphasized civilian institutions and individual rights. Those provisions included the right to habeas corpus; presumption of innocence until proven guilty in judicial proceedings; arrest only by judicial warrant or in the commission of an offense; the right to go before a judge within twenty-four hours of arrest (except for terrorism, treason, and drug trafficking); immediate advice in writing as to reasons for arrest; access to a lawyer from the time of arrest; authorities' obligation to report location of person arrested; the inadmissibility of forced statements; no detention without communication; no transfer to a jurisdiction not provided for by law; trial only under legal procedures; and no torture or inhumane treatment.
However, Article 231 of the constitution of 1979 allowed for the suspension of some civil and political rights under exceptional circumstances by a presidential decree of a state of emergency or a state of siege for all or any portion of the country. It also allowed the president to order the armed forces to assume responsibilities for public order from civilian authorities, and could be renewed by the president every ninety days for an indeterminate period. As a result of the insurgency, this article has been invoked repeatedly; the military has been put in charge of every region that has been in a declared state of emergency since December 1982, except Lima. The effect of the president's use of Article 231 was to substantially erode constitutional guarantees in large sections of the country. Civilian courts were denied access to detention areas, making it impossible for them to pursue writs of habeas corpus. Military courts assumed responsibility for dealing with abuses committed by soldiers, and were upheld by the Supreme Court. Occasionally, police were tried for their alleged abuses, as in the successful prosecution of twelve members of the Sinchi Battalion for a 1983 massacre in the Ayacucho community of Socos and their sentencing to ten to twenty-five years in prison. But these cases were exceptional, and most reported abuses went unpunished. With the failure of the court system to respond effectively, the Office of the Public Ministry (an autonomous monitoring institution empowered to press charges), a short-lived special prosecutor for the investigation of disappearances, and the Congress through a special commission all tried, with very limited success, to fill the gap.
The civilian court limitations were manifest in the emergency zones, but also were very evident in the rest of the country. Only a small percentage of reported crimes were brought to trial in any given year (1 to 3 percent). Through June 1984, only 15 of 1,080 persons held for terrorist acts had been sentenced. As of 1989, less than 5 percent of those arrested for terrorist acts had been convicted. Of the 643 women inmates of Chorrillos Prison in December 1990, just 117 had received sentences. A smaller number of cases reached the Supreme Court in 1989 and 1990 than in 1985, in part owing to a six-month strike by the judicial branch in 1989. The Ministry of Justice reported in July 1988 that there was a backlog of almost 45,000 criminal cases and that two-thirds of all prison inmates were still awaiting trial. The weaknesses of the judiciary and the strains to which it was subjected by the recurring fiscal crisis of the government, the increase in common crime during the decade, the insurgency, and the government's response to it made the legal principles of the penal code and the constitution of 1979 virtually impossible to apply in practice. Frustration with the judicial system was a major factor in President Fujimori's April 5, 1992, decision to suspend the constitution, including the judiciary. Decree-laws tightened anticriminal and antiterrorist procedures and practices, including internal subversion redefined as treason and hence subject to trial in military courts. After Guzmán's capture in September 1992, his rapid trial, conviction, and life imprisonment along with several fellow SL leaders would have been legally impossible under the pre-April 1992 status of the laws and the judiciary.
Data as of September 1992
Peru Table of Contents