I - DEMOCRACY AND RULE OF LAW
OF THE PERUVIAN STATE
By referendum held October 31, 1993, the Peruvian people ratified the
approval of the Constitution by the Democratic Constituent Congress.
The new Constitution replaced the 1979 one, and was designed with a view
to modernizing the State. In this
respect, then-Justice Minister of Peru explained in his introduction to the new
Constitution that: "... the
national political bureaucracy had not yet experienced the discredit that it
suffers today; terrorism was not known, at least in our country, on the scale
that on which it has since been seen; fast-paced technological change, the
consolidation of the liberal economic model, and democracy in the realm of
politics were not given sufficient consideration by the framers of the 1979
Constitution. There was a heavy emphasis on the State as service provider,
reflected in its interventionist conduct, which found full expression in the
1980s. It was a bloated State, as big as it was weak, as bureaucratic as it was
anarchic. It was a situation that
had to be ended, and in effect that was done.
The 1993 Constitution is the legal expression of the effort to reverse
the situation described."
The Peruvian Constitution notes at Article 43 that "the Republic of
Peru is democratic, social, independent, and sovereign. The State is one and indivisible. Its form of government is unitary, representative, and
decentralized, and it is organized pursuant to the principle of the separation
of powers." This last
provision was introduced in the 1993 Constitution.
The 1993 Constitution also provides that State power emanates from the
people, and considers as one of the essential duties of the State "to
guarantee the full observance of human rights."
The Peruvian Constitution calls for the Legislative power to vest in the
Congress, which has a single chamber made up of 120 members of Congress.
The Congress is elected for a five-year period. Pursuant to Article 93 of the Constitution, "the members
of Congress represent the Nation."
The main powers of Congress are provided for at Article 102 of the
Constitution. Special mention can
be made of the powers to "adopt laws and legislative resolutions, as well
as to interpret, amend, or derogate existing laws; to ensure respect for the
Constitution and the laws, and to provide as necessary to enforce the
responsibility of those who break the law; to approve treaties; to approve the
budget and the general accounts; and to exercise all other powers indicated by
the Constitution and that properly vest in the legislative function."
Article 104 of the Constitution establishes that: "The Congress may
delegate to the Executive Branch the power to legislate, by legislative decree,
as to the specific matter, and for the given period, as established in the
The Constitution provides at Article 105 that "the Congress shall
accord preferential treatment to proposals sent by the Executive Branch with
urgency," and provides at Article 106 that "the structure and
operation of the State entities provided for in the Constitution" are
regulated by organic laws (leyes orgánicas).
It is also established that the draft organic laws are handled like any
other law, and are approved or amended by vote of "more than half of the
legal number of members of Congress."
The Constitution provides that the President of the Republic is the Head
of State and personifies the Nation. The
president is to be elected by direct vote, and under Article 112 of the
Constitution, "the presidential term is for five years.
The President may be re-elected immediately for an additional period.
After at least one other constitutional term has lapsed, the former
President may run again, subject to the same conditions."
The main powers of the President are spelled out in Article 118 of the
Constitution. They include the
following: "To carry out and enforce the Constitution and the treaties,
statutes, and all other legal provisions. To
represent the State, inside and outside the Republic.
To direct the Government's general policy.
To ensure the internal order and external security of the Republic.
To call elections for President of the Republic and representatives to
Congress, and for mayors and members of municipal councils and all other
officials as indicated by law.... To
exercise the power to regulate the laws without violating them or altering their
meaning; and, within those limits, to issue decrees and resolutions.
To carry out and enforce the judgments and resolutions of the judicial
organs.... To preside over
the National Defense System; and to organize, distribute, and order the use of
the Armed Forces and the National Police....
To administer the public treasury....
To grant pardons and commute sentences...."
The Constitution of Peru provides that the direction and management of
public services are entrusted to the Council of Ministers, made up of its
President and several Ministers. The
appointment of the President of the Council, who may be a
minister-without-portfolio, and of the Ministers, is to be made by the President
of the Republic. The President of
the Council of Ministers undertakes to coordinate the functions of all the other
ministers, and, in keeping with Article 123 of the Constitution, he or she shall
be, "after the President of the Republic, the authorized spokesperson of
The Peruvian Constitution establishes that the power to administer
justice emanates from the people and is exercised by the judicial branch,
through the judicial organs: the
Supreme Court of Justice and all other courts (cortes
and juzgados) as determined by the
Organic Law on the Judiciary. The
President of the Supreme Court of Justice is also President of the Judicial
Branch, according to Article 144 of the Constitution, and the Plenary Chamber of
the Supreme Court, is the highest-level deliberating body of the Judiciary.
Article 141 of the Constitution indicates that "the Supreme Court
shall rule on cassation motions, or in the final instance, when the action is
initiated in a Superior Court or before the Supreme Court, in keeping with the
law. In addition, it hears motions
of cassation against the rulings of the military jurisdiction, with the
limitations established at Article 173."
According to that Article 173, the only resolutions from the military
jurisdictions subject to cassation by the Supreme Court of Justice are those in
which the military courts have imposed the death penalty.
The Judicial Branch includes the Supreme Court, Superior Courts (Cortes
Superiores), Specialized and Mixed Courts (Juzgados Especiales y Mixtos), Justices of the Peace/Lawyer (Juzgados
de Paz Letrados), and Justices of the Peace (Juzgados
de Paz). There are 25 judicial districts.
There is one Supreme Court for the whole country, while there is a
Superior Court in each Judicial District. There
are also Specialized and Mixed Courts and Justices of the Peace.
Except for the justices of the peace, all other judges, including the
members of the Supreme Court, are appointed and removed, according to the
Peruvian Constitution, by the National Council of the Judiciary (Consejo
Nacional de la Magistratura),
The Constitution also provides for the Constitutional Court, also
According to Article 139 of the Peruvian Constitution, the judicial
function is characterized by the following principles and rights: "... Independence in the exercise of the judicial
function. No authority may take up
cases pending before the judicial organ nor interfere in the exercise of its
function. Nor may it void
resolutions that have become res judicata,
nor terminate ongoing procedures, nor modify judgments nor delay their
enforcement.... The observance of
due process and judicial protection.... The
principle of not being deprived of the right of defense at any stage of the
process.... [and] popular
participation in the appointment and removal of judges, in keeping with the
Pursuant to the terms at Article 146 of the Constitution of the Republic
of Peru, the Peruvian State guarantees the judges:
"1. Their independence.
They are subject exclusively to the Constitution and the law.
2. Tenure in their posts.
They may not be transferred without their consent.
3. Their permanence in the service, so long as their conduct and
suitability are in keeping with their function. 4. A level of
compensation that ensures them a standard of living worthy of their mission and
The Peruvian Constitution establishes that the National Council of the
Judiciary is an independent organ entrusted with the selection and appointment,
by open competition, of prosecutors and judges (except for justices of the
peace, who are elected by popular vote).
The National Council of the Judiciary is made up, in principle, of seven
members, elected for five years. The
members are elected, in distinct secret votes, by several national entities:
one by the Supreme Court of Justice, one by the Board of Supreme
Prosecutors (Junta de Fiscales Supremos),
one by the members of the bar associations, two by the country's other legal
professional associations, one by the presidents of the private universities.
The number of members of the National Council of the Judiciary may be
increased to nine, in which case the two additional members would be chosen by
the Council itself, from lists proposed by labor and business.
Under the Peruvian Constitution, the members of the National Council of
the Judiciary may be removed for grave cause, by decision of Congress.
Article 154 of the Peruvian Constitution establishes that in addition to
the above-noted function of appointing judges and prosecutors, the National
Council of the Judiciary also has the function of ratifying all judges and
prosecutors every seven years, and removing judges and prosecutors at all
levels, including the members of the Supreme Court of Justice and the supreme
prosecutors. The final resolution
must be reasoned, and the person concerned must first be given a hearing.
The Peruvian Constitution provides that the Public Ministry enjoys
autonomy, and that it is presided over by the Public Prosecutor (Fiscal de la Nación), who is elected by the Board of Supreme
Prosecutors. The Public Prosecutor
is elected for a three-year term, and may be re-elected for two additional
As indicated in the previous paragraph, the power to appoint and remove
of the prosecutors working under the Public Ministry is vested in the National
Council of the Judiciary. As
provided at Article 159 of the Peruvian Constitution, the powers of the Public
Ministry are: "1. To bring a judicial action, on its own initiative or at the
request of a party, to defend legality and the public interests protected by the
law. 2. To ensure the independence of the judicial organs and the
proper administration of justice. 3.
To represent society in judicial proceedings.
4. To conduct criminal
investigations from the start. With
that purpose in mind, the National Police is obliged to carry out the mandates
of the Public Ministry in the performance of its function.
5. To press criminal charges
on its own initiative or upon motion by a party...."
The Peruvian Constitution provides that the Constitutional Court is an
autonomous and independent organ, vested with powers of constitutional review.
Its seven members are elected by the Congress of the Republic for a
five-year term. The Magistrates of
the Constitutional Court are not subject to an imperative mandate, nor do they
receive instructions from any entity. They
cannot be removed from their post. They
do not answer for their votes or opinions in the performance of their function.
They enjoy immunity. They
cannot be detained or tried without authorization of the Court itself, sitting
en banc, except in the case of flagrancy (Article 13 of the Organic Law on the
Article 202 of the Peruvian Constitution vests the Constitutional Court
with jurisdiction: "To take
cognizance, in first instance and without appeal, of actions of
To take cognizance, in the last and final instance, of rulings denying
motions for habeas corpus, amparo, habeas
data, and action for enforcement [acción de cumplimiento].
3. To take cognizance of
jurisdictional disputes, or of powers assigned by the Constitution, pursuant to
the law." Later, Law No.
26,435, adopted by the Democratic Constituent Congress and promulgated by the
President of the Republic in 1995, made it necessary to have the votes of six of
the seven members of the Constitutional Court to declare a law unconstitutional.
The Constitution provides that the President of the Republic directs the
National Defense System, is the Supreme Chief of the Armed Forces and National
Police, and is assigned the power to promote officers to the rank of general and
admiral in the Armed Forces, and general in the National Police.
Article 173 of the 1993 Constitution provides that "in the event of
a service-related offense, the members of the Armed Forces and National Police
are subject to the respective jurisdiction and the Military Justice Code.
Its provisions are not applicable to civilians, except in the case of the
offenses of treason [traición a la patria] and terrorism, as provided by law.
The Supreme Court has the power, pursuant to Article 141 of the
Constitution, to sit in judgment when the death penalty may be imposed.
Those who infringe the laws on Compulsory Military Service are also
subjected to the Military Justice Code."
The Peruvian Constitution provides that the purpose of the electoral
system is to ensure that voting reflects the authentic, free, and spontaneous
will of the citizens. In addition,
the electoral system is made up of the National Elections Board (Jurado Nacional
de Elecciones), the National Elections Procedures Office, and the National
Registry of Identification and Civil Status.
The highest-level authority of the National Elections Board is the Board
sitting en banc, made up of five members, elected by the Supreme Court of
Justice, the Board of Supreme Prosecutors, the Lima Bar Association, and the
deans of the law schools, both public and private.
Pursuant to Article 178 of the Peruvian Constitution, "the National
Election Board has authority: to
monitor the legality of the vote and the holding of elections, referenda, and
other popular consultations, as well as the preparation of voter rolls.
To maintain and keep custody of the registry of political organizations.
To ensure compliance with the rules on political organizations and all
election-related provisions. To
administer electoral justice.... In
respect of elections, the National Elections Board may propose
The Constitution provides that the rulings of the full National Elections
Board, in respect of elections, referenda, or other types of popular
consultations, are issued in the last and final instance, and no appeal may be
brought against them.
Of the legal provisions related to international treaties and human
rights in Peru's 1993 Constitution,
Article 55 provides that treaties entered into by the State become an integral
part of Peruvian law. At Article
56, the Constitution regulates the procedure by which they are incorporated
definitively into domestic law. To
this end, it provides that international agreements, among others human rights
treaties--by interpretation of that article, which does not mention them
expressly--must be approved by the Congress, before they are effectively
ratified by the President of the Republic.
Article 57, in turn, establishes the mechanism by which a treaty may be
denounced, and by which the State would cease to be bound by the requirements
imposed by it. This clause
provides, in generic terms, that the denunciation of international agreements is
a prerogative, in principle, of the President of the Republic.
In the case of treaties subject to prior approval of the Congress, it
notes that the denunciation may proceed once the Legislative branch has so
The constitution in force up until 1993
contained provisions that expressly established the priority to be accorded
respect for human rights as a matter of law and policy for the State.
Thus, the clause at Article 80 stated that ensuring full observance of
human rights was one of the "essential" ("primordiales")
duties of the authorities. Article
211(1), in the section on the obligations and powers of the head of the
Executive branch, provides that the President of the Republic shall be subject
to complying with, among others, the provisions that emanate from human rights
Another particularity of the 1979 Constitution was Title VIII, clause 16.
It specifically vested three international instruments with
constitutional rank: the
International Covenant on Civil and Political Rights (CCPR), the Optional
Protocol to the CCPR, and the American Convention on Human Rights.
It should be noted that with respect to the American Convention, clause
16 referred expressly to Peru's accession to Articles 45 and 62, respectively,
regarding the jurisdiction of the Inter-American Commission and the jurisdiction
of the Inter-American Court of Human Rights.
These provisions were enhanced by the provision in Title V, Article 305,
referring to international bodies. Article
305 gave Peruvian citizens recourse to those "international courts and
organs constituted by treaties to which Peru is a party," once they have
exhausted the remedies available in the domestic jurisdiction.
The above description of the constitutional reform process undertaken by
Peru in the early 1990s, which culminated in the adoption of a new
constitutional text, highlights that the Peruvian State has opted not to make
specific reference in the new Constitution to any international human rights
instrument. For example, the
Constitution adopted in 1993 does not give hierarchical rank to any of the three
international agreements that enjoyed such status under the 1979 Constitution,
including the American Convention on Human Rights.
This represents backsliding in terms of the rank accorded to the
international protection of human rights, thus it could be interpreted that
these same international instruments are now being accorded legal rank equal to
that of general legislation, making it possible to amend or abrogate them by
Congressional statute, in a marked departure from the approach taken by the
framers of the 1979 Constitution.
The Peruvian State has ratified and is party to many international
instruments for the protection of human rights.
As regards the universal system, Peru has acceded to the following
conventions and treaties, among others:
The International Covenant on Civil and Political Rights, adopted by the
United Nations General Assembly in its resolution 2200A (XXI), of December 16,
1966, which entered into force on March 23, 1976 (ratified constitutionally,
pursuant to the sixteenth general provision of the 1979 Constitution of Peru);
the International Covenant on Economic, Social and Cultural Rights,
adopted by the United Nations General Assembly on December 16, 1966, and which
entered into force on January 3, 1976 (signed by Peru on January 11, 1977,
approved by Decree-law No. 22,189, of March 28, 1978, and ratified on April 12,
the Optional Protocol to the International Covenant on Civil and
Political Rights, adopted by the United Nations General Assembly by resolution
2200A (XXI), of December 16, 1966, and which entered into force on March 23,
the Convention on the Elimination of All Forms of Discrimination against
Women, adopted by the United Nations General Assembly by resolution 34/180 of
December 18, 1979, and which entered into force on September 3, 1981;
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted by the 39th United Nations General Assembly by
resolution 39/46, of December 10, 1984, and which entered into force on June 26,
1987 (approved by Legislative Resolution No. 24,815, of May 12, 1988, and
ratified on July 7, 1988);
the Convention on the Rights of the Child, adopted by the United Nations
General Assembly by resolution 44/25, of November 20, 1989, and which entered
into force on September 2, 1990;
the International Convention on the Elimination of All Forms of Racial
Discrimination, adopted by the General Assembly by resolution 2106 (XXI) of
December 21, 1965, and which entered into force on January 4, 1969 (approved by
Peru by Decree-Law No. 18,969, of September 21, 1971, and ratified on September
the Convention on the Prevention and Punishment of the Crime of Genocide,
adopted by the General Assembly by Resolution 260A (III) of December 9, 1948,
and which entered into force on January 12, 1951 (approved by Legislative
Resolution No. 13,288, of December 28, 1959, and ratified on February 24, 1960);
the Convention on the Suppression and Punishment of the Crime of
Apartheid, adopted by the General Assembly by resolution 3068 (XXVIII), of
November 30, 1973, and which entered into force on July 18, 1976;
the Convention on the Political Rights of Women, adopted by the General
Assembly by resolution 640 (VII), of December 20, 1952, and which entered into
force on July 7, 1954;
the International Convention against Apartheid in Sports, adopted by the
General Assembly by resolution 40/64, of December 10, 1985;
the Slavery Convention, which entered into force on March 9, 1927;
the International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families, adopted by the General Assembly
by resolution 45/158 of December 18, 1990, and not yet in force;
Convention relating to the Status of Refugees, adopted by the United
Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless
Persons, adopted by the General Assembly by resolution 429 (V), of December 14,
1950, and which entered into force on April 22, 1954; and,
the Protocol relating to the Status of Refugees, adopted by the General
Assembly by resolution 2198 (XXI) of December 16, 1966, and which entered into
force on October 4, 1967.
With respect to the international instruments approved within the
inter-American system for the protection of human rights, Peru is a party to the
following human rights treaties:
the American Convention on Human Rights, signed at the Inter-American
Specialized Conference on Human Rights, on November 22, 1969 (approved by
Decree-Law 22,231, of July 11, 1978, and ratified on July 28, 1978);
the Inter-American Convention to Prevent and Punish Torture, adopted by
the 15th Regular Session of the General Assembly, Organization of American
States, December 9, 1985 (approved by Legislation Resolution No. 25,286 of
December 12, 1990, ratified by Peru on March 28, 1991);
the Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women/Convention of Belém do Pará, adopted
during the 24th Regular Session of the General Assembly, June 9, 1994 (ratified
by Peru on June 4, 1996); and,
the Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights/Protocol of San Salvador, adopted
November 17, 1988 (ratified by Peru on June 4, 1995).
Six of the above-cited legal instruments of the universal system have
established committees of independent experts to monitor the States parties'
compliance with the obligations set forth in these instruments. To this end, they issue periodic reports that analyze the
evolution of the internal situation in the countries in relation to the rights
with respect to which they have jurisdiction to investigate.
The six organs are the following:
the Human Rights Committee, entrusted with monitoring compliance with the
provisions of the International Covenant on Civil and Political Rights;
the Committee on Economic, Social and Cultural Rights, which supervises
compliance with the obligations that arise from the International Covenant on
Economic, Social and Cultural Rights;
the Committee against Torture, created by the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment;
the Committee on the Elimination of Racial Discrimination, created by the
International Convention on the Elimination of All Forms of Racial
the Committee on the Elimination of Discrimination against Women, whose
establishment was mandated by the Convention on the Elimination of All Forms of
Discrimination against Women; and,
the Committee on the Rights of the Child, established by the Convention
on the Rights of the Child.
The situation in Peru has been addressed by these organs on various
occasions; the organs have highlighted an array of human rights problems, and
have recommended that the Peruvian authorities make changes or adopt specific
corrective measures. The Committee
against Torture, in its concluding observations issued on occasion of its
November 1999 session, noted that the following situations were especially
worrisome: "a. the continuing
numerous allegations of torture; b. the lack of 'independence' of those members
of the judiciary who have no security of tenure; c. the period of incommunicado
pre-trial detention of 15 days for persons suspected of acts of terrorism; d.
the use of military courts to try civilians; e. the automatic penalty of at
least 1 year of solitary confinement from the date of the trial of anyone
convicted of a terrorism offence; f. the apparent lack of effective
investigation and prosecution of those who are accused of having committed acts
of torture; g. the use of, in particular, the amnesty laws which preclude
prosecution of alleged torturers who must, according to Articles 4, 5 and 12 of
the Convention, be investigated and prosecuted where appropriate.
h. the maintenance in some parts of the country of emergency laws which
abrogate ordinary human rights protection; i. the special prison regime
applicable to convicted terrorists and in particular to convicted terrorist
leaders; j. the failure of the Attorney General's Office to keep a precise
register of persons who claim that they have been tortured."
With respect to the persistence of the military jurisdiction and its
effects on the exercise of fundamental rights and freedoms, the Human Rights
Committee indicated in 1999 that trials before special courts made up of
anonymous judges are incompatible with Article 14 of the Covenant" and
added that "the very nature of the system of trials by 'faceless judges' in
a remote prison is predicated on the exclusion of the public from the
proceedings. In this situation, the defendants do not know who the judges trying
them are and unacceptable impediments are created to their preparation of their
defence and communication with their lawyers. Moreover, this system fails to
guarantee a cardinal aspect of a fair trial within the meaning of Article 14 of
the Covenant: that the tribunal must be, and be seen to be, independent and
impartial." It concluded be
noting: "In a system of trial by 'faceless judges', neither the
independence nor the impartiality of the judges is guaranteed, since the
tribunal, being established ad hoc,
may comprise serving members of the armed forces."
The Committee against Torture also took note of the Peruvian situation
with respect to the practice of torture or abuse by the Peruvian security and
police authorities and set forth, with
concern, the information provided by two former agents of the Peruvian
intelligence corps, who allegedly admitted that they received training, by their
superiors, in the torture of detainees. The
Committee also cites a report by the World Organization Against Torture, which
alluded, along the lines of what the former agents described, to the systematic
practice of abuse and torture by State forces.
The Committee conveyed to the Government its special concern that this
information sparked regarding the situation of torture in Peru.
The Committee also made a more general appeal, on reiterating the need to
"accelerate the reforms geared to installing a genuine rule of law."
To this end, it added, it was imperative for the authorities of the Peruvian
State to derogate laws that infringe on the independence of the judiciary, which
is the central guarantee for developing a system for the protection of human
On issues of racial discrimination, the Committee on the Elimination of
Racial Discrimination, in April 1999, found "the close relationship between
socio-economic underdevelopment and the phenomena of ethnic or racial
discrimination against part of the population, chiefly the indigenous and
existing in Peru. In terms of laws,
the Committee observed, also with concern, the lack of specific legislative
provisions to ensure full observance of the International Convention on the
Elimination of All Forms of Racial Discrimination.
Later, the Committee noted: "It is also worrying to learn that
people who are in fact subjected to all sorts of pressure, from both subversive
groups and the forces of law and order, are being charged with aiding and
abetting terrorists. Allegations have further been made that indigenous
communities are being forced to set up self-defence committees under the armed
forces and that young people from the most underprivileged sectors of the
population are being conscripted by force."
Finally, the Committee urged the Peruvian authorities to pursue possible
courses of action aimed at achieving a solution to the problems indicated.
It encouraged the Peruvian authorities to establish a "genuine
with the non-governmental organizations involved in the struggle against racial
and ethnic discrimination.
In turn, the Committee on the Elimination of Discrimination against
Women, in its concluding observations published in July 1998,
indicated, among its main concerns, "the situation of women who have been
displaced from their places of origin with their families as a result of
terrorist activity." Immediately thereafter, it recommended to the
authorities "that the greatest possible care should be given to such women,
who, in the main, were heads of household, and who should be the beneficiaries
of programmes to promote their participation in the labour force together with
access for them and their families to education, health care, housing, drinking
water and other essential services."
The Committee also indicated to the Peruvian authorities that "the
Committee is deeply disturbed by the instances of sexual violence against rural
and indigenous women and the high rate of sexual abuse of teenagers and girls in
It recommended that the necessary efforts be made to provide assistance to the
victims of such practices, including training for police, army, court, medical
and paramedical personnel, and all those who, considering their specific
functions, enter into contact with those who suffer physical or sexual abuse.
The Peruvian Constitution defines the Office of the Human Rights
Ombudsman (Defensoría del Pueblo) as
an autonomous organ, headed up by the Human Rights Ombudsman (Defensor del Pueblo), who is elected and removed by Congress.
The Human Rights Ombudsman serves a five-year term, may introduce
legislation, and may propose measures to facilitate the performance of his or
Article 162 of the Peruvian Constitution establishes that the Office of
the Human Rights Ombudsman is responsible for defending the constitutional
rights and fundamental rights of the person and of the community, supervising
the state administration, performance of its duties, and supervising the
delivery of public services to citizens. In
1995, the Peruvian Congress approved the Organic Law on the Office of the Human
Rights Ombudsman, and on September 11, 1996, the Office of the Human Rights
Ombudsman initiated its activities of providing services to the public, with the
designation of the Ombudsman, Jorge Santistevan de Noriega.
The Office of the Human Rights Ombudsman is organized territorially, on a
decentralized basis, with representatives of service modules in various
localities nationwide, and with itinerant teams. This enables it to perform its functions throughout the
national territory. In terms of its
organizational structure, it has been organized in three "Adjuntías,"
or offices of deputy ombudsmen, organized as per the areas of authority assigned
by the Constitution to the Office of the Human Rights Ombudsman:
human rights, state administration, and public services. In 1999
approximately 35% of its budget was made up of funds from international
The work of the Office of the Human Rights Ombudsman covers several
areas. In relation to the
observance of human rights, the Office has been in charge of important matters
such as the Ad Hoc Commission on
innocent persons tried or convicted as terrorists, those persons facing charges
yet neither convicted or cleared (los requisitoriados),
persons deprived of liberty, military service, respect for constitutional
guarantees, women's rights, and the rights of the disabled.
Supervising the duties of the state administration, the Office of the
Human Rights Ombudsman has addressed issues such as limits on the access to
information, the duty of the administration to make decisions in matters under
its consideration, respect for the principle of legality, and pensioners'
rights. In relation to the
supervision performed by the Office of the Human Rights Ombudsman of the
delivery of public services to citizens, it has addressed matters such as access
to public services, the quality and security of such services, and improper
electricity bills. In addition, the
Office of the Ombudsman has played a significant part in cases involving Peru
before the Inter-American Court of Human Rights and before the Inter-American
Commission as well, submitting amicus
curiae briefs on behalf of inhabitants of Peru.
The Commission reiterates the importance it attributes to the creation
and efficient operation of the Office of the Human Rights Ombudsman, and shares
what was noted by the Coordinadora
Nacional de Derechos Humanos to the effect that "the Office of the
Human Rights Ombudsman has displayed a posture of defending human rights and
citizen rights. It has played a
significant part in facing up to abuses of authority and has issued
pronouncements and made several recommendations to overcome problems that affect
human rights." The Commission considers
that the autonomous and independent existence of the Office of the Human Rights
Ombudsman is one of the most significant elements favoring respect for human
rights in Peru.
The Commission is of the view that the work of the Office of the Human
Rights Ombudsman should be supported and strengthened where it may prove
necessary, be it in respect of institutional, budgetary, or other matters.
Introduction to the 1993 Constitution by Fernando Vega Santa Gadea (Minister
of Justice). Compendium of
Constitutional Legislation, Walter Gutiérrez Camacho, Carlos Mesía Ramírez,
official edition, Ministry of Justice (1995).
The Congress of the 1979 Constitution was bicameral, with a 60-member Senate
and a 180-member Chamber of Deputies.
This provision is from Article 188 of the 1979 Constitution.
Article 205 of the 1979 Constitution established a
presidential term of five years, with no immediate re-election.
That majority required by Law No. 26,435 may make it impossible for the
Constitutional Court to review the constitutionality of laws, as analyzed infra.
The Constitution of Peru was approved by the Democratic Constituent Congress
and ratified in the referendum of October 31, 1993; it was then promulgated
on December 29, 1993.
The 1979 Constitution.
The foregoing, without prejudice to possible judicial interpretations
according due rank to the protection of human rights.
Committee Against Torture; 23rd session, November 15, 1999, CAT/C/23/4,
Human Rights Committee, 61st session; January 9, 1998; CCPR/C/61/D/577/1994.
Committee Against Torture, October 20, 1999; CAT/C/SR.330; p. 6.
Id., p. 3.
Committee on the Elimination of Racial Discrimination, 54th session;
CERD/C/304 Add. 69, April 13, 1999; p. 2.
Id., p. 3.
Id., p. 4.
Committee on the Elimination of Discrimination against Women, 19th session;
A/53/38 Rev. 1, paras. 292-346; July 8, 1998; pp. 4-5.
Id. p. 7.
Office of the Human Rights Ombudsman, Executive Summary, Segundo Informe del Defensor del Pueblo al Congreso de la República
, Lima, April 1999.
 Coordinadora Nacional de Derechos Humanos, Informe a la Comisión Interamericana de Derechos Humanos, Lima, November 1998. That report has been published by the Coodinadora at the following web site: <http://www.cnddhh.org.pe/inforcidh.htm>.