The Peruvian Defensoria del Pueblo and Torture Prevention

The Peruvian Defensoría del Pueblo was established in law in 1993 and activated in 1996 amidst a process of institutional deconstruction and widespread human rights violations.  Nevertheless, the institution succeeded in becoming “practically the sole democratic agent” within state structures under the authoritarian regime of Alberto Fujimori (1990-2000) (Pegram 2008).  Under the fragile democratic order that has emerged since, the Defensoría has retained its status as a highly credible human rights defender, consistently receiving the highest public support for any state institution.

Peru ratified the OPCAT in 2006 and it entered into force in October of that year.  Under Article 17, the Peruvian government was under an obligation to establish an NPM within one year.  As of September 2012, this obligation remains pending.   For its part, the Defensoría has lobbied the government on an annual basis to establish an NPM in line with the OPCAT since 2006.

The profile of the Defensoría in the area of torture prevention is well established.  During the 1990s, the office built its reputation on high profile investigations of alleged torture, as well as related issues such as the military justice system, and arbitrary police detention.  It has pursued such investigations through both domestic and legal channels, including amicus curiae briefs before the Inter-American System of Human Rights.

The Peruvian Defensoría is formally robust in design terms, enjoying safeguards of independence (such as constitutional standing, election by parliament, immunity, and fixed tenure), as well as an unrestrictive human rights mandate, coupled with broad quasi-judicial powers (it can receive complaints, undertake investigations, act ex officio, refer matters to the Prosecutor’s Office, submit amparo, habeas corpus and amicus curiae briefs, among other attributes).  Importantly, from an NPM perspective, it has subpoena authority and powers of inspection without prior notification.  One deficit that has been addressed in the draft NPM legislation is explicit jurisdiction over the military.

The Defensoría has requested designation on the proviso that it is provided with additional resources. This position reportedly has the support of the President of the Council of Ministers but resisted by the Ministry of Economy and Finance. The Defensoría is adamant that additional resources must be allocated.

It has also taken on the function of monitoring the penitentiary system nationwide, periodically visiting police stations, military bases and prisons since 1996.  The Defensoría has repeatedly highlighted the critical state of the country’s prisons, in particular issues of severe overpopulation, corruption, insufficient security, scarce economic resources and the neglect of detainees’ basic necessities.

The Defensoría reports undertaking a range of protection and prevention activities on the issue of torture and other cruel, inhuman or degrading treatment including: urgent action in response to alleged violations by public officials, supervision of the prosecutorial arm of the State, and providing detailed reports on investigations and recommended sanctions. In some cases, it has provided medical and legal aid to victims. In addition, the Defensoría also pursues preventive strategies, including the training of police and military personnel, penitentiary officials, neighbourhood watchmen and education authorities.

Importantly, the Defensoría also enjoys the support of civil society.  A consortium of NGOs under the umbrella civil society organisation, the Coordinadora Nacional de Derechos Humanos (CNDDHH), has submitted the original legislative proposal to the Ministry of Justice calling for the Defensoría to be designated as the NPM. The proposal was met with approval by the Ministry in mid-2010.  It was subsequently approved by the inter-ministerial National Council of Human Rights in December 2010 and remains pending before the Council of Ministers.

One important area requiring attention in the pending legislation is clarification on the role of civil society within the NPM.  Alongside civil society actors, including human rights NGOs and the Episcopal Church, the Defensoría has been one of the principal advocates for torture prevention.  Although torture is no longer systematic in Peru as it was throughout the 1980s, it is still in evidence, especially among police and security personnel.  Torture was only explicitly criminalised in the penal code in 1998 following mobilisation by the Defensoría among other actors.  Deficiencies in existing legislation persist and the Defensoría continues to lobby the government to ensure the crime of torture is put on the statute books in accordance with international standards.[1]

The gravity of the offence has in recent years emphasised by the Constitutional Tribunal and Supreme Court.  Nevertheless, such normative development belies a Peruvian lived-reality where too often a blind eye is turned to crimes of torture and cruel, inhuman and degrading treatment.

The Defensoría has done much to expose the persistent practice of torture in contemporary Peru.  In particular, the office has issued periodic Special Reports.  Since 2006 it has issued data on complaints of torture received.  According to the Defensoría, there have been 640 complaint of torture in the period 1998 to 2010, with 62 complaints received in 2011.  These statistics have been widely reported in the Peruvian media and by civil society organisations.

The Defensoría also continues to highlight the persistence of de facto legal impunity for torturers in Peru.  The office reports that since 1998 until 2009, there were only 12 successful prosecutions of torture.  The office has also documented presiding judges handing down lesser sentences than the minimum stipulated by law without explaining their decisions.  The Defensoría has also exposed inadequacies in the investigation of crimes, including duplication of function across agencies, the absence of internal investigative procedures within the national police force, and a general lack of awareness within the Prosecutor’s Office of their own medical and legal protocol on detecting possible injuries resulting from torture.

In sum, the Peruvian Defensoría appears well placed to take on the mantle of NPM. However, it confronts a challenging context within which to fulfil a nation-wide torture prevention mandate. A key challenge will be managing the competing demands and expectations of diverse constituencies as it takes on functions additional to what is already an expansive brief. Nevertheless, the Defensoría since its activation has demonstrated a commitment to the task of torture eradication and, importantly, made an impact.

[1] Currently, although torture is prohibited in the Constitution (article 2) and the legal code (article 321) it is a reactive not preventive measure.