Peru

Constitutional Provisions

Article 2(1) of the 1993 Constitution of Peru (as amended) provides that every person has the right:

To life, his identity, his moral, psychical, and physical integrity, and his free development and well-being. The unborn child is a rights-bearing subject in all cases that benefit him.

Article 2(24)(h) stipulates that: "No one shall be a victim of moral, psychical, or physical violence, nor be subjected to torture or inhuman or humiliating treatment. "

Article 2(12) of the Constitution recognises the right of "peaceful assembly without arms": 

Meetings on any premises, whether private or open to the public, do not require prior notification. Meetings held in squares and public thoroughfares require advance notification by the relevant authority, which may prohibit such meetings solely for proved reasons of safety or public health.

Article 166 addresses the mandate of the Peruvian Police:

It is the primary duty of the National Police to guarantee, maintain, and restore internal order. They protect and aid individuals and the community. They ensure the enforcement of laws and the security of both public and private property. They prevent, investigate, and fight crime. They guard and control the national borders.

Treaty Adherence

Global Treaties

Regional Treaties

National Legislation

Police Use of Force

Use of force by the Peruvian Police is primarily regulated under Legislative Decree 1186 of 2015. Article 4 submits all use of force to the principles of legality, necessity, and proportionality. Article 8 governs the circumstances and rules of conduct on the use of force. Paragraph 1 states that a member of the National Police must identify himself as a police officer 

and give a clear warning of their intention to use force, with sufficient time for it to be taken into account, unless that warning puts it in danger or creates a serious risk of death or serious injury to other people, or when the warning is obviously inadequate given the circumstances of the case.

Article 8(2) authorises the police to use force in the following circumstances:

• to stop a crime in flagrante delicto or by judicial order according to law
• to fulfill a duty or lawful orders issued by the competent authorities
• to prevent the commission of crimes and misdemeanours
• to protect or defend legal rights 
• and restrain whoever opposes the authorities.

Article 8(3) restricts the use of firearms to

when strictly necessary, and only when less extreme measures are insufficient or inadequate, in the following situations:

a. in self-defense or of other people in case of real and imminent danger of death or serious injury.

b. when a situation involving a serious threat to life occurs during the commission of a particularly serious crime.

c. when there is a real and imminent danger of death or serious injury as a result of the resistance offered by the person to be arrested.

d. when a person's life is put at real, imminent and current risk by an escapee.

e. there is a real danger of imminent death of the police personnel or another person, by the action of a person who participates in a violent assembly.

But the 2020 Law on Police Protection (Ley de Protección Policial en Perú) has changed the rules substantively. The so-called Police Protection Law entails three main changes. First, it prohibits the issuance of preliminary judicial detention or preventive detention against police officers who, through the use of their weapons or means of defense, cause injury or death. Second, it modifies the grounds for exemption from criminal liability provided for members of the Peruvian National Police (PNP) and the Armed Forces. Third, it repeals the principle of proportionality in the use of force, recognized in Article 4(1)(c) of Legislative Decree No. 1186.

Police Oversight

Peru has no dedicated independent civilian police oversight body. The National Ombudsman (Defensoria del pueblo) may investigate complaints against the police but has no power to demand a prosecution.

In its 2018 Concluding Observations on Peru, the Committee against Torture called on the authorities to:

Guarantee the independence of the body responsible for investigating complaints of excessive use of force and other police abuses, and that there is no institutional or hierarchical relationship between the investigators of that body and the presumed perpetrators.... 

Caselaw

Global

Views and Concluding Observations of United Nations Treaty Bodies

In its 2023 Concluding Observations on Peru, the Human Rights Committee was concerned 

about reports of human rights violations allegedly committed in the context of social protests in November and December 2020 and since 7 December 2022, including cases of excessive, indiscriminate and disproportionate use of force and of firearms by security forces, extrajudicial executions, mass arbitrary detentions and cases of violence motivated by racism or discrimination, particularly against Indigenous persons, campesinos and people from especially disadvantaged areas who have historically been subjected to structural discrimination, such as Apurímac, Ayacucho, Arequipa, Cusco, Junín, La Libertad, Lima and Puno. 

The Committee was deeply concerned that

Act No. 30151 (2014) recasts article 20 of the Criminal Code in a way that makes it difficult for members of the armed forces and the national police who cause death or injury while performing their duties or using their weapons to be held criminally liable. 

It also noted "with deep concern" that "Act No. 31012 (2020) on Police Protection modifies the grounds for exemption from criminal liability for members of the armed forces and the national police, prohibits the imposition of pretrial detention on police officers accused of acts involving the use of their weapon and repeals the principle of proportionality in the use of force as recognized in article 4 (1) (c) of Legislative Decree No. 1186 (2015)". It further noted that although the Act should be interpreted in accordance with the Constitution and the international treaties to which Peru is a party, its application could pose serious obstacles to the fight against impunity and to accountability and access to justice.

The Committee called on Peru to take measures to effectively prevent and eliminate all forms of excessive use of force by the security forces, in particular in the context of peaceful assemblies. Accordingly, it said that the authorities should:

(a) Urgently revise Acts No. 30151 (2014) and No. 31012 (2020) and bring the legislative framework into line with the Covenant and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; 

(b) Ensure that human rights violations allegedly committed during demonstrations, including those that may have taken place during social protests since 7 December 2022, are investigated promptly, thoroughly, impartially and effectively.

In its 2018 Concluding Observations on Peru, the Committee against Torture expressed its 

concern at the number of people killed and wounded as a result of the actions of the security forces in response to the sometimes violent protest actions against mining projects and other extractive industries that have taken place in different regions of the country.

While noting a marked decline in this type of incident in recent years, the Committee regretted that Peru

has not provided the information requested on the investigations and related criminal proceedings carried out in respect of all the deaths of demonstrators caused by gunfire of the National Police and the Armed Forces during the period under review. On the other hand, although it takes note of the explanations offered by the delegation regarding the scope of the military jurisdiction and the applicable exception legislation, the Committee remains concerned about the abusive recourse by the State party to states of emergency and the consequent restriction and/or suspension of fundamental rights and freedoms to stifle, even preventively, this type of protest.

The Committee called on Peru to: 

Carry out more mandatory training for all law enforcement officers and members of the armed forces on the use of force, especially in the context of demonstrations, taking due account of the Basic Principles on the Use of Force and Firearms by the Law Enforcement Officials.

Regional

Challhuayaco community v. Peru

In 2023, the Inter-American Commission on Human Rights filed an application before the Inter-American Court of Human Rights, in case 11,041, with regard to Peru. This case concerns deaths and injuries caused by police officers to members of the Challhuayaco community in February 1992. On 3 February 1992, the peasant council in the Challhuayaco community, in the department of Ancash, arrested Román González Leyva and accused him of stealing cattle. Four days later, police officers entered the community and took him away. On 8 February, several people in the community and several members of the peasant council went to the police station in the town of Chavón, where González Leyva was being held, to request that he be tried in keeping with peasant council practices. The police invited the leader of the community to enter the police station for talks. However, when he refused, police officers used tear gas and shot the crowd that had gathered, leaving five people dead and at least 22 injured.

In March 1992, the mixed public prosecutor's office in Huari province filed a complaint against six police officers over these events and proceedings were transferred to military and police courts. In December 2002, the High Council of Justice of Peru's National Police dismissed the case, arguing that these events had happened in the course of regular police actions. This decision was ratified in March 2003 by the Acting General Auditor of the Supreme Military Justice Council. In April 2003, the Supreme Military Justice Council issued a final judgment where it accepted as valid the decision made by the High Council of Justice. In August 2003, the Supreme Military Justice Council shelved the case.

In its Admissibility and Merits Report, the Commission said that the State had failed to provide a suitable explanation—based on an independent, impartial investigation conducted with due diligence—about the use of lethal force. While the State argued that there had been clashes and that various objects had been thrown at police officers, the evidence suggests that the use of lethal force did not merely seek to disperse the crowd. The Commission noted that the community's alleged escape following the shots did not justify the use of lethal force. The IACHR therefore found that the use of force had not sought legitimate ends and that it had been unnecessary and disproportionate, so the State is liable for violations of victims' rights to life and personal integrity.

The Commission further found that, by taking the case to military and police criminal courts, the State had violated the rights to a fair trial and to judicial protection, as well as the right to an impartial authority of competent jurisdiction. Since this case involves human rights violations—more specifically, violations of the rights to life and humane treatment—these events should not have been regarded as offences committed in the course of duty, so the relevant investigation should have been conducted by ordinary courts.

Cruz Sánchez and others v. Peru (2015)

In December 1996, 14 members of the terrorist group Tupac Amaru Revolutionary Movement raided the Japanese ambassador's home in Lima. The TARM took the approximately 600 guests hostage for the next four months. On 22 April 1997, State armed forces raided the compound, killing the 14 terrorists, and liberating the remaining hostages. As this event was part of a non-international armed conflict, rules of international humanitarian law, such as Common Article 3 of the 1949 Geneva Conventions, applied to the situation. While the majority of the terrorists were lawfully targeted and killed, evidence surfaced that three may have been captured alive by the State, and then subsequently killed, in contravention of Common Article 3. The Court also faulted the State for failing to adequately investigate the crime scene and deaths of these individuals in a timely manner. The Court found that the State had violated the Inter-American Convention on Human Rights. With respect to arbitrary deprivation of life, the Court stated that this would occur when the use of force by the state is illegitimate, excessive, or disproportionate.

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