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Peru Penal Code
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
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