Practice Relating to Rule 100. Fair Trial Guarantees
Section C. Presumption of innocence
Peru’s IHL Manual (2004) states that “anyone charged with a criminal offence must be presumed innocent until proven guilty”.
Peru’s IHL and Human Rights Manual (2010) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including: “Presumption of innocence while culpability has not been proven.”
Peru’s New Code of Criminal Procedure (2004) states:
1. Every person accused of committing a punishable offence shall be presumed innocent and treated as such until proven otherwise and he or she is found liable by a court in a final and duly reasoned sentence. …
In case of doubt regarding the criminal liability, the case shall be resolved in favour of the accused.
2. No public officer or authority may refer to a person as guilty of an offence, or provide information in this regard, until a final judgment has been handed down.
Peru’s Code of Military and Police Justice (2006) states:
1. Any member of the military or the police prosecuted for the commission of a punishable offence shall be presumed innocent and must be treated as such until proven otherwise and he or she is found liable by a court in a final and duly reasoned sentence. To this end, sufficient evidence is necessary which has been obtained in an appropriate way and by complying with the procedural safeguards.
In case of doubt regarding criminal responsibility, the case shall be resolved in favour of the accused.
2. No public officer or authority may refer to a member of the military or police as guilty of an offence or provide information in this regard until a final judgment is handed down.
However, indispensable information on such a member of the military or police may be made public when necessary for his or her identification and/or capture.
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in a chapter entitled “Procedural principles and guarantees”:
Article 146.- Principle of presumption of innocence
1. Every member of the military or the police accused of having committed a punishable act is considered innocent, and treated as such, as long as the contrary has not been proven and until his or her responsibility has been established by a solid and properly reasoned decision. To this end, sufficient proof of the charges, which must be obtained and processed in accordance with relevant procedural safeguards, is necessary.
In case of doubt, the criminal responsibility of an accused must be resolved in favour of the accused.
2. Until a decision has been rendered, no public official or authority may treat a member of the military or the police as guilty or may make available information to this effect.
Nevertheless, information that is strictly necessary to identify and/or capture the accused may be released.
In 2003, in the Marcelino Tineo Silva and Others case, Peru’s Constitutional Court found:
Justifying … pre-trial detention solely with the reproachable nature and negative social consequences of the crime of terrorism would violate the principle of presumption of innocence because, as stated by the Inter-American Commission of Human Rights, justifying a person’s detention based on the degree of danger or nature of the crime “could be understood as being subjected to punishment in advance before the competent judge has had a chance to decide whether or not the person is guilty. This situation may lead to an arbitrary and twisted application of preventive detention for purposes different from those considered in the law itself.” (Report No. 02/97, para. 51).
Pre-trial detention, which restricts a person’s freedom of movement even though he or she is presumed innocent during the process, may only be imposed if for a certain reason it is considered indispensable. Consequently, its imposition can never be rendered compulsory by law.