RIGHTS OF THE CHILD
One very important indicator of respect for human rights is how a society
treats its children. A society
respectful of fundamental rights provides liberty and dignity to children and
creates the conditions in which they can develop their full potential.
Despite improvements in Peru's economic indicators generally in recent
there have not been major improvements in the situation of children.
According to the development index for children devised by the National
Institute of Statistics and Informatics of Peru, 16 of Peru's 24 departments are
at low or very low levels in the development of children, which is a matter of
The Commission has received complaints on serious situations that affect
the rights of children and adolescents in Peru, of which special mention can be
made of child labor, the situation of juvenile delinquents, and the high
infant mortality. In this context,
the Commission, in this chapter, studies various important aspects related to
the situation of Peruvian youth.
International legal framework
The American Convention on Human Rights, ratified by Peru in 1978,
establishes at its Article 19: "Every
minor child has the right to the measures of protection required by his
condition as a minor on the part of his family, society, and the state."
In 1990, the Peruvian State ratified the Convention on the Rights of the
Child, an international instrument adopted in 1989 under the auspices of the
United Nations (UN). That
Convention sets forth the theory of the best interests of the child and
comprehensive protection for children, recognizes rights that are specifically
children's rights, and provides guidelines to ensure the effective
implementation of these rights.
The Convention on the Rights of the Child worked a change in the old
paradigms in respect of children, and an opportunity to devise new forms of
intervention. The child, hitherto conceived of as a passive subject of
protection by the State, came to be seen as an active subject endowed with
The 1993 Constitution of Peru states at Article 4:
"the community and the State afford special protection to children,
adolescents, mothers, and the elderly who have been neglected.
In addition, they protect the family and promote marriage.
They recognize in the family and marriage natural and fundamental
institutions of society...."
The main national legislation on children is the Code of Children and
Adolescents, promulgated in 1992, by which Peru incorporated into its domestic
legislation the new standards on rights of the child contained in the Convention
on the Rights of the Child. This
new code is aimed at overcoming the doctrine regarding the "irregular
situation of the minor," based on the doctrine of "comprehensive
protection," the basic concept of which is that children and adolescents
are subjects at law. In this new
conception, society is organized through social mechanisms that include children
and adolescents. This new system
seeks to protect them fully, as subjects at law.
The Code organizes the National System of Comprehensive Services, made up
of the Lead Agency (Ente Rector) and the Office of the Ombudsman for Children and
Adolescents. As part of
implementing that Code, in 1995, the Law of the National System of Comprehensive
Care for Children and Adolescents was promulgated.
Later, the functions of the Lead Agency
were transferred to the Ministry for the Promotion of Women and Human
The Peruvian State has also promulgated several laws related to children
concerning issues such as protection from family violence, military service,
sexual violence, the National Registry of Identification and Civil Status, and
In general, Peru has a solid and broad legal framework, both
international and national, which, together, has adequate standards with respect
to the rights of the child. A large part of those provisions, however, do not apply to
the real situation of most Peruvian children.
In this chapter, the Commission analyzes some of the specific problems
affecting Peruvian children, after first noting several aspects in respect of
which progress has been made.
The Commission was informed of several plans that have been developed by
the Peruvian State in recent years with a view to improving the situation of
Decree No. 003-97 PROMUDEH of May 22, 1997, for example, approved the
National Plan of Action for Children 1996-2000.
The objective of that plan is to promote and ensure the full application
of the rights of children and to contribute to the strategy for combating
poverty. In addition to the national, regional, and district plans,
there are specific development plans for each sector, such as, for example, the
National Health Plan.
In addition, the Office of the Ombudsman for Children and Adolescents has
been created. It is a service of
the comprehensive care system that operates in the local governments and in
public and private institutions whose function is to see to the best interests
of children. The IACHR received
information that indicates that several Offices of Ombudsmen for the Promotion
and Strengthening of Children and Adolescents have been created, for which
community ombudsmen and promoters are being trained; that service networks have
been formed in the departments; and that a child emergency line has been
established that has helped to provide care in several cases, especially of
abuse and violence.
D. CHILD LABOR, CHILD PROSTITUTION AND
RECRUITMENT OF ADOLESCENTS
Hundreds of thousands of children and adolescents are incorporated into
the labor market, marginalized from education, and the victims of exploitation
According to information provided to the Commission, as of the first
quarter of 1996, 1.9 million children and adolescents ages 6 to 17 years
performed various types of labor. In
Peruvian legislation, child labor is regulated mainly by the Code on Children
and Adolescents, according to which the minimum legal age for working in Peru is
12 years, one of the lowest in Latin America.
The Commission was informed that approximately 1,500 to 2,000 children
"live" in the street, mainly in Lima, exposed to the many risks this
entails. This situation is
generally the result of violence and abuse in the family, as well as
socioeconomic factors. It is noted
that the ratio of boys to girls among those living in the street is 9 to 1,
whereas the average age of boys and girls is 11 years and 13 years,
respectively. In this context, the
girls are victims of sexual exploitation when, for their "survival,"
they have recourse to prostitution, which presents itself as an option for
meeting their most basic survival needs.
Although forced labor is strictly prohibited, reports were lodged with
the IACHR alleging the existence of this practice in remote regions of the Andes
and the Amazon jungle. In addition,
it has been noted that approximately 4,500 youths under 18 years of age work in
difficult conditions in the informal-sector gold-panning sites in Madre de Dios.
The numbers of children and adolescents who work in Peru has yet to be
established with precision. Peru
does not have registries for this purpose, which should be kept by the municipal
governments in coordination with the Ministry of Labor and PROMUDEH.
Peru has not ratified Convention 138 of the International Labor
Organization (ILO), which requires that the States set a minimum age of 15 years
for entering the labor market, and that this minimum be increased gradually to
18 years. This omission may help
weaken the legal basis for eliminating child labor.
The Commission was informed by experts that although the legislation
establishes that registration for compulsory military service is required from
age 18, in recent years there have been many cases of levies or forced
recruitment of persons under 18 years of age in several parts of the country,
particularly in border areas and rural areas of the interior.
One of the aspects that presents major problems in Peru is related to the
legislative treatment of juvenile delinquents.
Even though the Code on Children and Adolescents had brought Peruvian
legislation into line with the Convention on the Rights of the Child, drawing a
distinction between social policy and criminal policy, and setting forth the
defense and recognition of the rights of children and youth, for example,
reforms to that Code have resulted in backsliding in this area.
Thus, Decree-Law No. 895, "Law against Aggravated Terrorism,"
reduced the age of criminal liability from 18 to 16, and established penalties
including prison sentences of not less than 25 years, in violation of Article 37
of the Convention on the Rights of the Child, according to which imprisonment
shall only be used as a last recourse, and for the shortest time.
Decree-Law No. 899 established imprisonment for six years for children
and adolescents ages 12 to 17 years who participate in "pernicious
gangs," thereby amending the Code on the Child, whose original wording
provided for a maximum prison term of three years as an ultimate measure for
aggravated violations. Experts in
the field told the Commission that this Decree is clearly repressive and that it
fails to acknowledge the social problem of violence among youths; that it
establishes vague and imprecise definitions of criminal conduct; and that it
recurs to state repression as the main form of control and punishment.
In Peru, children and adolescents who break the law continue to be
incarcerated in penitentiaries for adults, with whom--as they are in the same
penitentiary--they share common spaces. In addition, the IACHR verified that
children held in preventive detention are at such centers.
The IACHR was also informed that at the adult penitentiary at Cuzco one
finds children held with adults, and that it is reported that recently an
adolescent was murdered, while two tried to commit suicide.
The IACHR also received information according to which the prisons under
the administration of the judicial branch do not meet the minimum standards for
youths accused of serious crimes. Those
prisons do not have pedagogical programs for recovery nor adequate levels of
internal and external security; there is inhuman physical and emotional
treatment, and persons who have committed serious crimes are held with persons
who have committed minor violations. In
its observations on this part of the report, the State noted that the Youth
Centers of Lima are working with a new approach in order to bring about the
social re-adaptation of the detainees. Similarly,
the State indicated that this prison policy is part of the overall reform to the
Despite the efforts of the Peruvian State, high indices of infant and
maternal mortality persist. In this
respect, the development indices drawn up by the World Bank in its World
Development Report estimate infant mortality at 40 per 1,000 live births.
For its part, the report of the Coordinadora
Nacional de Derechos Humanos on the situation of economic, social, and
cultural rights in Peru
estimates that mortality of children under 5 years is 65 per 1,000 live births.
Acute respiratory infections constitute the leading cause of death in
children, especially pneumonia. Malnutrition
is still high due to the deficient diet and high morbidity, caused mainly by
diarrheal and infectious diseases. According
to the first national census of height of first graders (1993), 48% of children
ages 6 to 9 years suffered chronic malnutrition; this situation is more critical
in males (54%) and in the rural area (67%).
The department with the highest malnutrition was Huancavelica (72%), and
the lowest were Tacna (18%) and Callao (20%).
That the Peruvian State adopt joint and immediate actions to ensure
realization of the rights established in the Convention on the Rights of the
Child and in all other national and international provisions on the matter.
That education campaigns be carried out on the rights of the child, aimed
at various sectors of society, especially judges, prosecutors, defense
attorneys, police, and children.
That efforts continue to achieve the goals of the National Plan of Action
for Children, especially those goals aimed at reducing the main causes of infant
mortality, training families in self-care of children's health, strengthening
the capacity of the public hospitals, and disease prevention campaigns.
That efforts be stepped up to include children in the educational system
who are not receiving an education at school, and that an ongoing effort be made
to improve the quality of primary and secondary instruction.
That the systems for the collection, analysis, and dissemination of
indicators on the situation of children and adolescents be strengthened.
That Legislative Decrees No. 895 on "Aggravated Terrorism" and
No. 899 "Pernicious Gang Activity" be modified at those parts that
constitute violations of the provisions of international human rights law.
That Convention 138 of the ILO be signed and ratified, and that forceful
actions be developed to eradicate child labor.
See Chapter of Economic, Social and Cultural Rights, supra.
This development index considers a set of dimensions relating to unmet basic
needs in the home, malnutrition, low educational development, the lack of
recreational spaces, and early incorporation of children into the work
The Convention on the Rights of the Child consists of 54 articles organized
in four major groups of rights: (1) Survival: corresponding to the right to
grow up healthy and to enjoy adequate food, housing, and medical services;
(2) development: these are the rights to guarantee the living conditions
necessary for full human development; (3) protection: these are the rights
to be protected and to safeguard them from any abuse, exploitation, or
abandonment; (4) participation: these are the rights of children to express
what they experience, think, and feel, and to be heard in matters that
affect their own lives, and the lives of their family and community.
PROMUDEH is in charge of policies and programs relating to women, children,
youth, the elderly, and the indigenous groups.
Grupo de Iniciativa Nacional por los
Derechos del Niño, Gin, La Situación de los Niños, Niñas y Adolescentes
en el Perú -- 1999, Lima, 1999.
In its observations to the draft report, Peru mentioned a series of
provisions that regulate child labor in terms of age and number of hours
daily, as well as the need to obtain permits to work.
For example, the Peruvian State noted that the minimum age for
working may differ based on the activity in question.
For agricultural workers, it is 14 years, for industrial, commercial,
or mining establishments it is 15 years, and for industrial fishing, 16
See Chapter on Economic, Social and Cultural Rights, supra.
Coordinadora Nacional de Derechos
Humanos, Working Panel on Economic and Cultural Rights, Report parallel
to the Report by Peru submitted to the Committee on Economic, Social and
Cultural Rights in its session of April 28 to May 16, 1997.
On this point the State observes that in Peru infant mortality dropped from
57.2 to 42.6 per 1,000 live births from 1990 to 1997.
See: Pan American Health Organization, La
salud del niño y adolescente, Análisis de la Situación de Salud en Perú.
This study can be found at the following Internet address:
With respect to this recommendation, the State has noted the change brought
about by Law 27,235, which modified Legislative Decree No. 895.
This law changed the name of the offense from "aggravated
terrorism" to "special terrorism," with the regular civilian
courts having jurisdiction over such offenses.
Nonetheless, no change has been made in the age at which one may be
liable; rather, it remains at 16 years, in violation of the Convention on
the Rights of the Child. In any
event, still pending is the modification of the crime of "malicious
gang activity" ("pandillaje
malicioso"), found in Decree 899.
 The State has noted in its observations to the draft report, that in March 1999 it forwarded to the Congress of the Republic ILO Convention 138, in order to follow through with the constitutional procedure for the approval of treaties.