Practice Relating to Rule 100. Fair Trial Guarantees
Section B. Trial by an independent, impartial and regularly constituted court
Peru’s IHL Manual (2004) states:
Sentences may not be passed or penalties executed in relation to a person found guilty of a criminal offence under international humanitarian law unless a trial has been held. The judgment must be delivered by an impartial, duly constituted court, which respects generally accepted principles of due process.
Peru’s IHL and Human Rights Manual (2010) states:
Sentences may not be passed or penalties executed in relation to a person found guilty of a criminal offence under international humanitarian law unless a trial has been held.
The judgment must be delivered by an impartial, duly constituted court, which respects generally accepted principles of due process.
Peru’s Code of Military and Police Justice (2006) states: “Judges shall be impartial in their decisions and during all stages of the proceedings. Their independence from any external interference shall be guaranteed.”
The Code further states:
Any member of the military or police who in the context of an international or non-international armed conflict:
8. Imposes a penalty on or executes a penalty against a person protected by international humanitarian law without a conviction that results from an impartial judicial process and without the due process guarantees established by international law shall be imprisoned for a period of no less than six and no more than 12 years.
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
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”:
Nobody may be condemned except without previous judgment which is based on a law … which respects the rights and guarantees established by the Political Constitution of the State, international treaties on the protection of human rights and the rules set out by the present Code.
The Code also states:
The judges must act impartially in their decisions and at all stages of the proceedings.
The law guarantees the autonomy and independence of the judges against any interference in the exercise of their functions.