The Inter-American Commission accords special attention to the human
rights situation of persons deprived of their physical liberty.
The fact that such persons are in an especially vulnerable situation,
together with the frequent lack of public policies in this regard that accord
due priority to prison conditions, often results in the systematic violation of
the human rights of the prison population.
The right and obligation of the State to punish persons who commit crimes
are beyond any doubt.
Yet certainly this does not imply that persons deprived of their liberty,
most of whom in Peru and elsewhere in the hemisphere are in preventive
detention, i.e. they have not been found liable by any court, do not have the
right to be treated with full respect for their human dignity.
It has been noted, in this regard, that
problem of criminal conduct has social and moral roots.
The prison as a "solution" has historically proven not to be an
effective alternative for modifying this conduct; to the contrary, it has merely
generated more violence.
It has been shown, practically worldwide, that the universe of persons
who are in prison are from marginal and poor parts of society, who have not been
valued or recognized as persons.
The problems related to the prison situation generally affect all the
countries of the hemisphere.
In view of this circumstance, the Inter-American Commission has a
Rapporteur on Prison Conditions in the Americas, makes periodic visits to the
prisons and other centers of detention, both in its on-site visits and on
special visits focused exclusively on prison conditions, and includes a chapter
on prison conditions in its reports on the human rights situation in the
During its on-site visit to Peru, the IACHR visited various centers of
detention, in both Lima and the interior:
the prisons visited were those at Ayacucho, Yanamayo, and Challapalca,
Castro Castro, Socabaya, Yanamilla, and the Cuartel
General "Simón Bolívar".
These visits provided an opportunity to meet with both prison authorities and
addition, the Commission has continuously updated its information on and
continues regular monitoring of
aspects related to the prison situation in Peru.
In this report, the IACHR, after reviewing the applicable national and
international legislation, addresses the most significant problems related to
the prison situation in Peru.
Article 1 of the American Convention provides that the States parties
undertake to respect the rights and freedoms recognized in it, and to guarantee
their free and full exercise to all persons subject to their jurisdiction,
Article 5 of the American Convention, on the right to humane treatment,
establishes the following:
Every person has the right to have his physical, mental, and moral
No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall be treated
with respect for the inherent dignity of the human person.
Punishment shall not be extended to any person other than the criminal.
Accused persons shall, save in exceptional circumstances, be segregated from
convicted persons, and shall be subject to separate treatment appropriate to
their status as unconvicted persons.
Minors while subject to criminal proceedings shall be separated from adults and
brought before specialized tribunals, as speedily as possible, so that they may
be treated in accordance with their status as minors.
Punishments consisting of deprivation of liberty shall have as an essential aim
the reform and social readaptation of the prisoners.
Article 7 of the same Convention provides:
Every person has the right to personal liberty and security.
No one shall be deprived of his physical liberty except for the reasons and
under the conditions established beforehand by the constitution of the State
Party concerned or by a law established pursuant thereto.
No one shall be subject to arbitrary arrest or imprisonment.
Anyone who is detained shall be informed of the reasons for his detention and
shall be promptly notified of the charge or charges against him.
Any person detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to be released without prejudice to the continuation
of the proceedings. His release may be subject to guarantees to assure his
appearance for trial.
Anyone who is deprived of his liberty shall be entitled to recourse to a
competent court, in order that the court may decide without delay on the
lawfulness of his arrest or detention and order his release if the arrest or
detention is unlawful. In States Parties whose laws provide that anyone who
believes himself to be threatened with deprivation of his liberty is entitled to
recourse to a competent court in order that it may decide on the lawfulness of
such threat, this remedy may not be restricted or abolished. The interested
party or another person in his behalf is entitled to seek these remedies.
No one shall be detained for debt. This principle shall not limit the
orders of a competent judicial authority issued for nonfulfillment of duties of
Within the universal system for the protection of human rights one also
finds specific instruments on the human rights of persons deprived of their
In this respect, the leading instruments are the Standard Minimum Rules
for the Treatment of Prisoners
and the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment,
which establish important standards and rules for the treatment of detainees,
concerning, for example, non-discrimination, keeping a registry of detainees,
and separating them into various categories; and covering issues such as
personal hygiene, food, physical exercise, medical services, the disciplinary
regime, prisoner transfers, and prison staff.
The Peruvian Constitution provides in its first article that "the
defense of the human person and respect for human dignity are the supreme end of
society and the State."
The Constitution also sets forth, at Article 139, the "right of
prisoners and convicts to occupy adequate establishments" and the
"principle that the prison regime has as its purpose the re-education,
rehabilitation, and re-incorporation into society of the person punished."
The 1991 Code of Criminal Enforcement provides that "enforcement of
criminal sentences and measures that deprive the accused of their liberty to be
free from torture or inhuman or humiliating treatment and of any other act or
procedure that is an affront to the dignity of the inmate," that the
"prison regime respects those rights of the prisoner not affected by the
conviction," that the "Penitentiary System incorporates the
provisions, conclusions, and recommendations of the United Nations for the
prevention of crime and treatment of the criminal," and that the
"inmate occupy an adequate environment and be accorded comprehensive
treatment, from intake to release."
The State has dictated several special laws which would appear to be at
odds with the general legal framework.
Thus, for example, Decree-Laws No. 25,474 and No. 25,744 established
rules with respect to persons found guilty of terrorism and treason that imposed
continuous solitary confinement during the first year of detention, and a
maximum of 30 minutes of family visits per month.
That regime was made less stringent with Supreme Decree 005-97-JUS, of
The prison regime for persons incarcerated for common crimes was also
made more severe with Supreme Decree 003-96-JUS, of 1996, Legislative Decrees
895 and 897 of 1998, and Supreme Decree 007-98-JUS, also of 1998, which, among
other things, established a stage of solitary confinement of the inmates for
common crimes, defined as "a period in which the regime of life established
in the close stage of maximum security is applied, with absolute restriction of
social contacts, for one year, and only once while serving the sentence.
The period of solitary confinement served during the criminal proceedings
may be deducted."
On this point, the Peruvian State indicated in its observations that
measures are being adopted progressively to loosen up this prison regime.
The Peruvian State has developed a plan to build new prisons.
Peru's prison population as of June 1999 is approximately 27,500
(approximately 25,000 men and 2,500 women), distributed in 84 prisons
persons have been accused or convicted of the following offenses (approximate
crimes, 17,000 persons; illicit drug trafficking, 6,500; terrorism, 2,000;
treason, 900, and aggravated robbery, 500.
In the observations made by the Peruvian State, it was indicated that
according to the records of the National Penitentiary Institute, the prison
population with respect to whom no verdict has issued, as of February 2000,
accounts for 52.07% of the total.
In addition, the Peruvian State indicated that it is taking several
measures to reduce the prison population not convicted.
In addition, it noted that a Commission was formed to propose measures to
be adopted to reduce the prison population.
In this respect, the high number of prisoners who have not been convicted
is a cause of concern to the Commission.
The American Convention prohibits arbitrary detentions and ensures that
people have the right to be judged within a reasonable time or released.
This implies the principle that one should be free during the trial; and
that preventive detention is a precautionary measure, not a punitive measure,
that may be granted in express cases and justified under international
standards, but which cannot exceed a reasonable time.
If the reasonable time is exceeded, this means that the preventive
detention has become an anticipated sentence, in violation of the right of every
person to be presumed innocent until proven guilty by law, enshrined in Article
8(2) of the American Convention.
The principle of a reasonable time, as the Inter-American Court of Human
Rights has indicated, has the purpose of keeping the accused in that status for
a long time, and ensuring that the accusation is decided on promptly.
For its part, the IACHR, in its on-site visit, was able to observe
directly the unacceptable situation of overcrowding and deficiencies in the food
given the inmates, both in terms of the amount budgeted for the food of each
inmate, and the non-existence of nutritional control to guarantee the quality of
the foods provided, and the lack of exhaustive control in the use of the budget
this regard, it should be noted that the Standard Minimum Rules for the
Treatment of Prisoners mentioned above provide that:
Every prisoner shall be provided by the administration at the usual hours
with food of nutritional value adequate for health and strength, of wholesome
quality and well prepared and served.
Drinking water shall be available to every prisoner whenever he needs it.
The Peruvian State, in its observations, indicated that through the
National Penitentiary Institute measures are being taken "to improve the
conditions of internment, improving coverage of services to the prison
population through professional teams of physicians, psychologists, social
workers, attorneys, teachers, and nutritionists, among others, based on the
state budget, albeit limited, plus the support of cooperation agencies."
As for the other conditions of detention, the IACHR observed that some
prisons, such as those at Challapalca and Yanamayo, are in totally inhospitable
places, both cold and geographically isolated.
This makes it very difficult, in practice, for relatives to visit,
because of the distance and other related obstacles.
In addition, the conditions of detention of many detainees are
excessively severe, as they are practically not allowed to spend time in the
yard nor to do physical exercise.
The Basic Principles for the Treatment of Prisoners (supra) indicate
addressed to the abolition of solitary confinement as a punishment, or to the
restriction of its use, should be undertaken and encouraged.
It should be noted that the Inter-American Court of Human Rights, as
mentioned in Chapter II supra,
declared that the conditions of detention imposed on the victims as a result of
the application of Article 20 of Decree-Law No. 25,475 and Article 3 of
Decree-Law No. 25,744 (both provide for continuous solitary confinement for the
first year of detention) by the military courts constitute cruel, inhuman, and
degrading treatment, in violation of Article 5 of the American Convention.
Incommunicado detention, bringing the prisoner before the court
blindfolded or hooded, the Court declared, are per se violations of Article 5(2) of the Convention.
Prolonged solitary confinement causes moral suffering and psychic
disturbances, and, according to the Court, constitutes a form of cruel, inhuman,
and degrading treatment under Article 5(2).
The Commission verified that the regime of visits by prisoners' relatives
is inadequate, and received reports on abuses and mistreatment of persons who
visit their imprisoned family members.
It is noted, among other considerations, that there is a system for
reviewing the persons who visit the prisoners, especially for women, which is an
assault not only on their dignity, but also on their health.
Women, for example, are generally subjected to a denigrating check,
including a vaginal inspection, which is reportedly performed using the same
glove for all the women who visit a given prison.
It is added that women are then required to jump, half-naked, and
crouching, and that they are touched.
With respect to intimate visits, the IACHR has been told that only some
of the men enjoy that right, leading to well-founded complaints on the part of
the population affected.
There is clear discrimination against female inmates, for even though the
provisions recognize the right to conjugal visits intimate without distinction
on ground of sex, the respective prison administrations do not allow them.
Other problems have to do with transfers of detainees and their right to
for transfers, it is noted that the National Penitentiary Institute has a
practice known as "lanchada",
which transfers the prisoners from one part of the country to another, whether
in preventive detention or serving a sentence, without any judicial order.
These transfers are often to places far from the courts or the domicile
of the family members, causing delays in the proceedings and the rupture of
family ties. As
regards health, it is reported that there are serious problems with the supply
of medicines, that the number of professionals assigned to cover the health
service is very low, and that the most common diseases are digestive, pulmonary,
venereal, and, of late, AIDS, which has been spreading at an alarming pace.
The Standard Minimum Rules for the Treatment of Prisoners provide:
every institution there shall be available the services of at least one
qualified medical officer.... The medical officer shall have the care of the
physical and mental health of the prisoners....
Sick prisoners who require specialist treatment shall be transferred to
specialized institutions or to civil hospitals.
Where hospital facilities are provided in an institution, their
equipment, furnishings and pharmaceutical supplies shall be proper for the
medical care and treatment of sick prisoners, and there shall be a staff of
suitable trained officers.
The Office of the Human Rights Ombudsman has also pointed to reports on
abusive treatment and torture by the National Police of Peru, and several
complaints against the National Police for arbitrary detentions.
The delegation of the IACHR that went to the prison at Challapalca
observed the severe conditions to which the prisoners are subjected.
It is considered a punishment prison, as it is said that it does not meet
the minimum condition for human survival.
This prison is in an inhospitable area, 4,600 meters above sea level,
with temperatures below 0 C.
The Inter-American Commission on Human Rights, mindful of the points set
forth in this chapter, makes the following recommendations to the Peruvian
That the State prison policy, in general, be guided by the fundamental
principle of respect for the personal dignity of the detainees, and the
provisions of Article 7(6) of the Convention, in that prison sentences should be
aimed essentially at the reform and social re-adaptation of the persons.
That all necessary measures be taken to improve the prison system and the
treatment of the prisoners, and to fully carry out the provisions of treaties on
the subject and other international instruments mentioned supra,
and of the Peruvian Constitution.
That during proceedings only those persons who truly constitute a danger
to society or with respect to whom there are serious suspicions that they will
not subject themselves to the requirements of the legal process be detained, in
keeping with legally established principles determined by the judge with
jurisdiction in each case.
That it ensure the existence of adequate conditions of detention, food,
hygiene, work, education, and recreation, in keeping with the above-noted
That the human rights of prisoners' family members be respected, so that
the visitors not be humiliated for using their right to visit.
That it endow the prison system with the resources it needs to develop in
keeping with the international laws and provisions in force.
That solitary confinement be eliminated as a stage in the prison
That the prisoners' daily food quota be increased.
That services related to prisoners' right to health be upgraded.
That the right to judicial assistance be guaranteed for all accused, and
that their human rights to humane treatment, liberty, and a fair trial be duly
That preventive measures be taken, including educational measures, to try
to put an end to arbitrary arrests by the police, and torture at police
That the prisons at Challapalca and Yanamayo be deemed unfit to serve
that purpose, and that the personnel detained at those prisons be transferred to
Bishops Commission for Social Action, Por
los Derechos Humanos de los Reclusos, Lima, 1998. p.7.
Adopted August 30, 1955, and approved by Economic and Social Council
resolutions 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977.
A/RES/43/173, December 9, 1988.
In this respect, see IACHR, Annual Report 1997, Report No. 2/97 - Jorge Luis
Bronstein et al., Case 11,205 and others (Argentina), para. 12, and
Inter-American Court of Human Rights, Case of Suárez Rosero, Judgment of
November 12, 1997, paras. 70, 71, 72, and 78.
Inter-American Court of Human Rights, Case of Castillo Petruzzi et
al., Judgment of May 30, 1999, paras. 192, 194, 195, and 197.
The Commission has pointed out that "vaginal inspections, or other type
of instrusive body searches, must be carried out by an appropriate health
professional," and that "to establish the lawfulness of a vaginal
search or inspection in a given case, these requisites must be met:
(1) it must be absolutely necessary to achieve the lawful objective
in the particular case; (2) there must not exist an alternative measure; (3)
it should be determined by judicial order; and (4) it must be carried out by
an appropriate health professional."
IACHR, Annual Report 1996, Report No. 38/96 - X and Y, Case 10.506
(Argentina), paras. 114 and 115.
 Office of the Human Rights Ombudsman, Executive Summary of the Segundo Informe del Defensor del Pueblo al Congreso de la República, Lima, April 1999.