HUMAN RIGHTS COMMITTEE CONSIDERS FIFTH PERIODIC REPORT OF PERU
20 March 2013
The Human Rights Committee today concluded its consideration of the fifth periodic report of Peru on how that country implements the provisions of the International Covenant on Civil and Political Rights.
Eda Adriana Rivas Franchini, Minister of Justice and Human Rights of Peru, presenting the report, said that the promotion of human rights was a priority and policies had been introduced in order to strengthen democracy and the rule of law. Peru was open to criticism and international dialogue and, after taking power in July 2011, the Government of President Ollanta Humala had demonstrated its commitment to the development of new institutions for the promotion of human rights and full respect for human rights treaties. In December 2011, the Ministry of Justice had been turned into the Ministry of Justice and Human Rights and the creation of a new vice ministry for human rights also signalled a shift at the executive level towards the implementation of a real human-rights based approach. Priority areas included compliance with fundamental rights, environmental plans, and guarantees for vulnerable groups, such as persons with disabilities, indigenous peoples, and children.
During the discussion, Committee Experts raised questions regarding the interpretation of international human rights treaties and the Covenant in the judicial system. Was the Covenant directly applied and should judges be made more aware of the Covenant? Experts inquired whether the delegation recognised racial discrimination against Afro-Peruvians and indigenous peoples as a serious problem. What concrete actions had been taken to combat incidents of violence against people on the grounds of sexual orientation or gender identity? What was the State’s resolve concerning therapeutic abortion? Committee Experts also noted that some provinces had remained under the state of emergency for over six years and expressed concerns about instances of arbitrary detention and torture. What was the reason for the high number of acquittals during the 1980-2000 conflict?
The delegation of Peru included representatives from the Ministry of Justice and Human Rights, the Public Ministry, the Ministry of External Relations, the Judiciary, the Ministry of Defence, the Ministry of the Interior, the Ministry of Women and Vulnerable Groups, and the Ministry of Health.
In concluding remarks, Henry José Ávila Herrera, Deputy Minister of Human Rights and Access to Justice, thanked the Committee for its questions and recommendations. Peru’s commitment to human rights was reflected at the international level and the frank and honest exchange of ideas would strengthen polices adopted. Peru remained committed to ensuring the enjoyment of human rights for all its citizens.
Nigel Rodley, Chairperson of the Committee, in concluding remarks, expressed appreciation for the high-level delegation and said that it had been a constructive dialogue. There had been remarkable changes in Peru, with the preeminent role of civilian justice rather than military justice in dealing with crimes. The issue of abortion remained and the overcrowding of prisons remained of concern, and Mr. Rodley insisted on the right of victims of human rights to receive a financial indemnisation. Mr. Rodley also thanked the delegation and looked forward to following-up on the dialogue.
The concluding observations and recommendations of the Committee on the report of Peru will be released towards the end of the session of the Committee, which concludes on Thursday, 28 March.
The Human Rights Committee will resume its work at 11 a.m. on Thursday, 21 March, when it will discuss draft General Comment on Article 9 on the right of everyone to liberty and security of person.
Presentation of the Report
EDA ADRIANA RIVAS FRANCHINI, Minister of Justice and Human Rights of Peru, presenting the fifth periodic report of Peru (CCPR/CO/70/PER), noted that the Peruvian delegation attested to the importance Peru accorded to human rights and the implementation of the Covenant. The promotion of human rights constituted a priority and policies had been introduced with the aim of strengthening democracy and the rule of law. Peru was open to criticism and international dialogue. After taking power in July 2011, the Government of President Ollanta Humala had demonstrated its commitment to the development of new institutions for the promotion of human rights and full respect for human rights treaties. In December 2011, the Ministry of Justice had been turned into the Ministry of Justice and Human Rights and the creation of a new vice ministry for human rights also signalled a shift at the executive level towards the implementation of a real human-rights based approach. The Ministry for Justice and Human Rights had drafted a national human rights plan with the goal of achieving real implementation within a defined budget. Priority areas included compliance with fundamental rights, environmental plans, and guarantees for vulnerable groups, such as persons with disabilities, indigenous peoples, and children. The Integral Plan on Reparations allowed the State to provide compensation to victims of violence from 1980 to 2000. Reparations allocated in 2012 constituted a 300 per cent increase from those delivered in 2011. The programme of individual economic reparations had allowed for the compensation of over 15,000 individuals, and collective reparations had been allocated to 201 communities in 2012.
As part of the symbolic reparations, in 2012 the State had funded a programme in order to help identify the remains of victims, including those found in mass graves. Specialized prosecutors for human rights had been appointed and a stronger forensic institute had been created. The Ministry of Development and Social Inclusion had implemented programmes for the implementation for temporary poverty relief targeting the most vulnerable groups in society and a Ministry was also in place to guarantee the rights of indigenous people and people of African descent. In order to prevent and manage social conflict, an office had been set up to address conflicts related to extractive industries. The only aim of states of emergency was to protect citizens in the context of grave disturbances of national catastrophes. States of emergency had to be decreed by the President and could not exceed a period of 60 days; they remained under Congressional oversight and did not limit Constitutional guarantees, such as the right of appeal or amparo and habeas corpus. A gender equality plan for 2012-2017 had been created and there had been an increase in gender quotas, with 30 per cent of women registered in political parties. These changes needed to be taken further. A significant amount of resources had been committed to the reform of the penitentiary system, since prison overcrowding was currently at over 100 per cent and many people were in pre-trial detention. Improvement was needed and the Government was committed to build five model prisons by the end of 2014. The Committee’s reports were contributing to a fairer, more democratic, and more inclusive Peru.
The delegation also summarized Peru’s responses to the list of issues identified by the Committee. Regarding the Constitution and its legal framework, progress had been made in the integration of international obligations into the domestic judicial order; and courts had interpreted Constitutional norms in the light of human rights treaties and decisions of international tribunals on human rights. In particular, the delegation highlighted that the Supreme Court had invoked the Covenant in order to address complex related to forced disappearances and claim preclusions. Regarding compliance, the Public Prosecutor’s followed-up on the Committee’s recommendations and, in recent years, work had been boosted with the presentation of periodic reports in collaboration with civil society. The Ministry of Justice and Human Rights published on its website the Committee’s recommendations and a specialized human rights webpage would be created to allow public officials to keep up with reforms.
In order to ensure women were fairly represented, in addition to the establishment of a quota, the Ministry of Women had developed a mapping exercise to identify instances of salary discrimination and to suggest remedies. A high-level commission would ensure a follow-up and assessments to combat violence against women. There were 175 emergency centres for women and 28 specialized centres for women. The State had also made progress on sexual and reproductive health, including on contraception programmes and the maternal mortality rate had fallen by 49.7 percent between 1944 and 2000. Abortion was only permitted when the life or health of the mother were in danger. The State had also implemented legislation to combat racial discrimination and discriminatory acts committed by public servants received stronger sentences. Sixty companies had been sanctioned for instances of discrimination in the workplace. The Constitutional tribunal had pronounced itself in a number of occasions in favour of constitutional protection for victims of discrimination on the basis of sexual orientation or gender identity.
Turning to the situation of indigenous peoples, the delegation noted that there was a law on the right to prior consultation for indigenous people. An official database had been set up with training for government officials, indigenous leaders and interpreters. Last year a new general law regarding persons with disabilities had been published. All persons with disabilities had the right to participate politically on an equal footing, including the right to vote and to seek election. As stated in the Constitution, people were not discriminated against on the basis of their sexual orientation. A national plan ensured that over 90 per cent of minors in 2012 had national identity papers and additional efforts were being undertaken in this regard. In June 2012, 91.6 per cent of minors under seventeen counted with national identity documents. Work remained to be done in rural areas, were the majority of persons without documents were concentrated.
Peru respected its international commitments and the principles of international humanitarian law and the delegation assured the Committee that provisions protecting the principle of non-refoulement were included in asylum laws and the sole exception concerned cases when the asylum seeker had committed a serious crime. Even then, individuals could not be sent back to a country where they might be subject to torture and Peru had not received allegations concerning violations committed against individuals who had been deported. Training on human rights was being provided to the armed forces and staff members of State institutions and special training programmes focussed on members of the security forces and in the context of social conflict. A website and phone lines for filing in torture complaints had been developed. The National Criminal Chamber had dictated 48 rulings on torture and victims of torture resulting in permanent physical or mental damage received 4,000 dollars in compensation. Over 16,000 victims of incidents of torture had received free medical care. The military justice system was only competent to judge crimes committed by the armed forces and there were no cases of conflict between military and ordinary cases.
Measures had been put in place to combat slavery and forced labour, including a system of inspections to combat this problem. In 2011, a maximum fine of $27,000 had been set up for employers accused of forced labour and forty-eight companies had been sanctioned for hiring minors. Concerning the situation of the penitentiary system, the delegation indicated that in 2013 there were 68 prisons with capacity for 20,000 inmates holding close to 60,000 prisoners. Urgent measures were being taken, including building new prisons and hiring of additional staff. A budget of $675 million had been allocated to reform the penitentiary system and, from 2013 to 2016, 15 new prisons would be built. In 2013, the budget envisaged the hiring of 1,000 new staff members and the creation of programmes to deal with health issues, such as HIV AIDS. Juvenile centres were managed separately. Peru enjoyed full respect for press freedom and rules had been broadened to deal with incidents involving cases of murder, kidnapping and extortion of journalists.
Questions by the Experts
GERALD L. NEUMAN, Committee Expert and Rapporteur for the Report of Peru, noted that the fifth periodic report was five years late but indicated that the Committee was glad to see the progress made so far. Regarding the use of international treaties and the Covenant in the interpretation of the law, Mr. Neuman asked whether the Covenant was ever directly applied. Should judges be made more aware of the Covenant? Did the delegation recognize racial discrimination against Afro-Peruvians and indigenous people as a serious problem? Regarding the 60 cases of discrimination in the workplace over the past five or six years, how many had involved racial discrimination? What concrete actions were being taken to combat violence against people on the grounds of sexual orientation or gender identity? There was a sanction of dismissal for same sex relations between members of the police and Mr. Neuman asked the delegation to comment on this issue.
Regarding elected posts, there was a gender quota of 30 per cent for party lists to ensure women’s participation, however, was this disposition actually taken seriously? Regarding the national plan to combat violence against women, an increase in the number of deaths of women at the hands of their partners had been reported, what was being done about this? What percentage of spouses who inflicted domestic violence faced sanctions or punishments? In terms of refugees or other persons seeking protection, there were reports of a lack of access to legal claims for people who did not fall into the category of refugee. The principle of non refoulement needed to be applied. There were concerns that, in the northern border regions, people returned to Colombia might be subject to ill treatment and torture.
Another Expert welcomed the wealth of information provided by the delegation and inquired whether the human rights plan had actually been approved. The Expert also asked if the national human rights council included representation from indigenous peoples and workers’ groups. What was the resolve of the State regarding therapeutic abortion and what about the mental health of mothers when considering therapeutic abortions? The delegation had stated that the Government was working on a protocol that would provide women with access to therapeutic abortion, what was the status of a 2002 draft bill on the right to safe and therapeutic abortion in cases of rape? In this context, Expert also inquired what would happen in a case of rapes committed inside marriage. Would such an incident be considered to be less serious? It was noted that a ruling in 2009 stated the Health Ministry should be able to make emergency contraceptive, commonly known as the morning-after pill, available; and Experts requested additional information on steps taken for the provision of sexual education and access to contraception? Teenage pregnancy rates had not decreased and no real training for teachers was available, according to reports from non-governmental organizations.
Some provinces had remained under the state of emergency for over six years and the Committee was concerned about instances of arbitrary detention and torture. Had investigations been carried out and sentences been imposed? Regarding human rights violations committed between 1980 and 2000, there had been acts of impunity reported and the Expert was concerned that the court was asking for direct, bodily, evidence to prove these crimes. What measures were being taken to ensure the Ministry of Defence handed over to the courts the information needed to investigate crimes committed during this period? With regards to the Truth and Reconciliation Commission, there was a need for ongoing information so that victims of sexual violence during the armed conflict could have access to justice and reparations? Concerning access to claims to reparations by indigenous groups, a deadline of 31 December 2011 to register as a victim had been extended, could victims in remote areas file complaints and what criteria was used for those people?
Another Expert asked about laws regarding persons with disabilities. How did these laws relate to the civil code and the provisions for voting, were fines imposed on persons who did not vote? The Expert asked whether persons with disabilities had access to health and social services. It was reported that persons with disabilities in some institutions were not able to exercise their right to a name, what steps were being taken to solve these problems? More than 2,000 women had been forcibly sterilized; did they have access to reparations and how many people were compensated? Concerning the use of force, Article 5.1 in Law 1095 established a legal framework and international humanitarian law was supposed to apply but how did Peru classify military intervention in the context of a democracy? What did “hostile group” and “an element of a hostile group” mean? Experts inquired about the number of occasions in which states of emergency had been decreed and how many remained in force. What was the role of the armed forces? In relation to demonstrations, the Committee had information that there had been 26 deaths in the context of social conflicts. How had the deaths of people outside the conflict documented? What methodology was used in trainings for the armed forces regarding the use of force? Were army weapons used to control civilian demonstrations? Moreover, apart from training courses, how did Peru raise awareness concerning the situation of vulnerable groups? Experts inquired if training for women was available and how many female officers were there in the police force. With regards to the police inspectorate, Experts asked whether it had real autonomy to carry out inspections. Were police officers eligible for legal aid?
Concerning the draft bill on torture, would this crime be recognised as a crime against humanity? Were good practices followed when investigating cases of torture? One of the Experts indicated that sexual violence against women needed to be included as part of the definition of torture. Companies needed to be held responsible for contributing to incidents of torture and the web page provided as a means of delivering torture complaints needed improvement. What happened if the State was found to be responsible for omissions or neglect in cases of torture? According to non-governmental organizations, over 300,000 abortions were taking place every year and many of them were clandestine. In this regard, Experts wondered, given that current legislation rendered 10 per cent of the population criminal, whether the State should re-consider its policy on abortion. Were confidential health services offered to women who underwent clandestine abortions? Experts also raised questions about the reasons for the high number of acquittals during the 1980-2000 conflict? One of the Experts noted that in order to guarantee respect for the principle of non-refoulement, the person in question needed to be properly identified; in this context, was data available regarding immigrants and asylum seekers claiming to be at risk?
Response by the Delegation
The delegation indicated that social protests were not criminalized. The state of emergency had been imposed for one week in the Conga mining area, where complaints had been received regarding criminal acts and people had felt threatened. Regional leaders needed to deal with these social conflicts and the State sought to ensure that dialogue and the rules of co-existence were respected. The state of emergency was currently in effect to ensure domestic order and in none of these cases the state of emergency related to social protests. States of emergency were exceptional measures and had to be underpinned by the Constitution and human rights treaties, and restrictions to the exercise of personal liberty were only imposed to protect citizens. Armed forces could only take part in a state of emergency when a request had been made by the President. Human rights were protected by habeus corpus and other constitutional guarantees.
Nevertheless, there were remnants of terrorist groups financed by drugs trafficking which posed a threat to the security of Peru. If violent groups clashed with the State during protests, the armed forces would intervene to assist the police. The use of force was carried out proportionately and the State ensured that it was in line with the Covenant and a code of conduct. Between 1990 and 2000 there had been no formal reporting concerning activities of the armed forces such as patrols and this had sometimes led some to seek impunity. However, the situation had changed and commanders were now required to present complete reports of operations as well as the names of staff involved. The Ministry of Defence had a 10-year-old international human rights centre in order to train educators and six thousand officials and teachers had received training so far.
The Vice-Ministry for Human Rights had been created to bring about change and Peru was committed to ensuring respect for human rights. Magistrates in Peru were increasingly invoking the provisions of the Covenant in their decisions. Training for magistrates was being improved and a webpage would disseminate information on human rights. The Human Rights Plan included 178 projects and, while it had not yet been formally approved, it would be on the Prime Minister’s agenda in the next few days. Regarding the composition of Peru’s human rights council, the delegation indicated that representation from rural workers, workers and indigenous populations was being considered. Regarding Article 1 of the legal framework establishing a plan for reparations, the Ministry of Economy was considering reopening a single registry for victims.
Data from the Crime Observatory indicated that in 2009 there had been 154 cases of femicide; in 2011 there had been 120 cases and in 2012 there had been only 99 cases. There had been 10 cases so far in 2013 and there was a clear trend concerning the reduction in the number of incidents. In 2011, law 29819 had incorporated femicide as a specific crime. Furthermore, some progress had been made in recovering the remains of victims of disappearances and 2,020 human remains had been found. Around 1,238 people had been identified, and 1,079 bodies had been handed over to relatives and next-of-kin. The delegation also indicated that, in order to improve the register for the crime of torture, there were plans for the development of the Public Prosecutor’s Office, including for a more systematic use of the databases and crime mapping tools. Concerning the issue of forced sterilizations, the delegation highlighted that investigations had been reopened and included more than 10,000 individuals.
A member of the delegation, also a justice of the Supreme Court, discussed the criminalization of abortion and said that a revised draft in the new criminal code covered the decriminalization of abortion in case of rape or sexual violation and in cases of so-called “sentimental rape.” Regarding therapeutic abortion, references to health had always covered both mental and physical aspects. In March 2012, the Ministry of Health issued a guide for therapeutic and voluntary abortion. The aim was to standardize surgical procedures for therapeutic abortion. A draft law was currently being revised to implement changes in the criminalization of torture and, in the new law the crime would not bound by a statute of limitations. A clause regarding the necessity of causing serious harm would be deleted and both legal persons and companies involved in acts of torture could be brought to trial.
The law stipulated that people could not be sacked on the basis of race or ethnicity. A campaign seeking to eradicate stereotypes and discrimination based on gender had been implemented and the national plan to combat violence against women sought to guarantee their right to a life free from violence. Furthermore, as a result of the equal opportunities law, more women held leadership roles in areas such as external trade, economy and finance. Regarding the situation of perpetrators, the Ministry of Women had submitted a draft law to ensure victims received economic support and another proposal would allow for temporary suspension of custody for fathers. The law created an advisory commission for persons with disabilities, which was in the process of being implemented.
Modern contraception in family planning included free injections and, in order to ensure a full supply, from 2012 there would be compulsory procurement to make them available even in rural areas. In order to improve maternal health, the budget had been increased by 400 per cent since 2008 and maternal, child and neonatal mortality rates had been reduced. Nevertheless, teenage pregnancies remained of concern, with a rate of 13 per cent. The State intended to implement a more aggressive strategy on reproductive health and to ensure teenagers’ access to healthcare, including legislation to promote school reintegration for teenage mothers. Haemorrhage, hypertension, post partum infections and abortion, which accounted for about 6 per cent of the total, were the main causes of maternal mortality.
Concerning the situation of refugees, the delegation highlighted that Peru respected international norms and the principle of non-refoulement. A draft law on humanitarian visas was under consideration and would help those whose request for asylum had been rejected; the law would also grant migratory status to displaced persons as a consequence of climate change, environmental or natural disasters, as well as victims of human trafficking. Border police and immigration officers had received training on the rights of refugees during the past eight years.
Questions from the Experts
An Expert asked for written clarification with regards to the status of a bill to decriminalize abortion. The Committee’s Chairman also requested for details concerning the number of the deaths which had occurred during protests. Another Expert asked for additional information about domestic workers who were reportedly found in a state of debt bondage, would free assistance and compensation be provided for victims of forced labour in these cases? The Expert also inquired whether domestic labour bondage would be made a crime.
The Committee had information about 300 attacks against human rights defenders over the past five years. Would the State take specific measures to protect them? Another Expert reiterated a request for information concerning measures to reform the management of the penitentiary system and issues related to health, including sanitation and security. In high security systems, there had been mutinies and breakouts and there had been repeated calls to the Government to close the Challapalca prison, located in Peru’s Altiplano. The Expert asked about measures taken in this regard. It was noted that there was a tendency to reduce the age of criminal responsibility and Experts wanted to know what was happening in terms of juveniles.
Regarding the provision of identity documents for children, did the figures in the report cover the whole country? What about children born out of wedlock, would they be allowed to take their father’s name, even in his absence? In written replies from the delegation it seemed that working children lacked education and Experts inquired about the situation regarding illiteracy rates. What about the discrepancy between the legal minimum age to work, which was 14 years-of-age, and the legal maximum age for school attendance, set at 15? Experts asked whether legislation would address this discrepancy. Could additional details be provided regarding programmes for street children? Regarding isolated and “uncontacted” or people in remote areas, Experts inquired how they were being protected from disruption and disease in relation to extraction industries. Concerning the situation of human trafficking, was more information available regarding results achieved from measures taken?
Response by the Delegation
Responding to Experts’ questions, the delegation indicated that there was a draft bill to make domestic servitude a crime. Concerning the situation of overcrowding in prisons, the delegation informed that new prisons were being built and it was expected that, by 2016, 15 new penitentiaries would reduce overcrowding by 30 percent. Crime prevention plans needed to be improved.
The delegation also pointed out that an administrative state of emergency had been declared in relation to the situation of the penitentiary system and in order to trigger responses from other Government departments. Some inmates’ rights could be suspended in high security prisons during a state of emergency and major health campaigns would be undertaken in prisons. Regarding the Challapalca prison, located in Peru’s Altiplano, the Government had decided to continue to use it given the rate of overcrowding.
Questions about how to deal with young people in conflict with the law were currently under study. With regards to questions about the ambiguity in the term “hostile group,” a decree law was being worked on which could include provisions to eliminate ambiguities. Concerning cases of deaths in the context of situations involving the armed forces, suspected perpetrators had been taken to civil courts.
All children and adolescents would have the right to a name and identity. Online registration for live births was being implemented. The delegation acknowledged that Peru had a 7.1 percent illiteracy rate and a programme to prevent child labour was underway. A pilot project would benefit 30,000 boys, girls and their families and another project to help street children was currently being developed. The minimum working age was being reviewed to make it 15 years of age rather than 14.
A road map for intercultural justice was being implemented and would restructure the justice of the peace systems, including the provision of training and monitoring. The delegation also underlined that investments had been made on a programme to provide guidance to young people and indicated that more information would be provided subsequently. There was also a plan to send boats out in order to reach persons living in remote areas and to be able to provide them with health care and other services.
HENRY JOSÉ ÁVILA HERRERA, Deputy Minister of Human Rights and Access to Justice, in concluding remarks, thanked the Committee for its questions and recommendations. Peru’s commitment to human rights was reflected at the international level and the frank and honest exchange of ideas would strengthen polices adopted. Peru remained committed to ensuring the enjoyment of human rights for all citizens. Mr. Ávila Herrera indicated that some remaining questions would be answered in writing and looked forward to further recommendations and responses from the Committee.
NIGEL RODLEY, Chairperson of the Committee, in concluding remarks, expressed his appreciation for the high-level delegation and said that it had been a constructive dialogue. There had been remarkable changes in Peru, with the preeminent role of civilian justice rather than military justice dealing with crimes. Nevertheless, the issue of abortion remained a concern. Mr. Rodley highlighted the importance of the process of reparation for victims of human rights violations from 1980 to 2000 and, noting that such a process would necessarily take time, insisted on the right of victims to receive a financial indemnisation. The overcrowding of prisons was also an issue of serious concern, with 29,000 cells for a population close to 60,000 inmates; this meant that prisoners often lived in catastrophic conditions and alternatives needed to be given serious priority. Mr. Rodley thanked the delegation and looked forward to following-up on the dialogue.
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