Practice Relating to Rule 99. Deprivation of Liberty
Peru’s IHL and Human Rights Manual (2010) states:
[The] right to personal liberty and integrity is one of the most important civil rights and is included in any human rights legislation, whether international or domestic. The violation of this right is related to the following guarantee: “The prohibition of unlawful deprivation of liberty.”
Forms of unlawful deprivation of personal liberty:
(a) Arbitrary detention
Detention is considered arbitrary when it is based on accusations that are not of a criminal nature and it constitutes an offence in all its forms.
Indefinite detention of persons without formulating concrete charges, without due process, without a legal representative and without effective means of defence undoubtedly constitutes a violation of the right to liberty and to due legal process.
As regards arbitrary detention, there are three forms:
1. Detention without judicial order.
2. Detention for political reasons.
3. Detention by the security forces in order to obtain information.
(b) Administrative detention
Detention takes the form of administrative detention when it is not based on criminal acts but on reasons of national security. It is imposed by executive order and without the intervention of the judicial power or any tribunal and it constitutes one of the forms of deprivation of liberty that is most widely denounced.
In order for administrative detention not to be arbitrary, it must fulfil the following conditions: that the detainee represents a “clear and serious threat” to society and that it is impossible to fend off this threat without resorting to administrative detention.
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their places of habitual residence or who have resettled in another part of the country have a right to:
f) be protected against … arbitrary detention … and [unlawful] confinement;
g) be protected against unlawful detention and unjustified arrest warrants.
Peru’s Code of Military and Police Justice (2006) states:
Any member of the military or police shall be imprisoned for a period of no less than five and no more than 15 years if he or she in the context of an international armed conflict:
1. Keeps a protected person in unlawful confinement … In less serious cases, the penalty shall be of no less than two and no more than five 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This article is no longer in force.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), in a chapter entitled “Crimes against persons protected by international humanitarian law”, states:
A member of the military or the police shall be punished with deprivation of liberty of not less than five years and not more than ten years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:
1. Subjects a person protected by International Humanitarian Law to unlawful confinement.
In a chapter entitled “Proceedings in times of armed conflict”, the Code also states:
Article 416. - Proceedings
The procedure to be followed in proceedings during international armed conflicts shall be subject to the rules established for ordinary proceedings to the extent that they apply.
Article 417.- Rules
In these proceedings, the following rules shall be observed:
1. The accused shall remain in detention.
In a chapter entitled “Penal enforcement”, the Code states:
The enforcement of a punishment of deprivation of liberty shall be carried out in accordance with the guarantees and limits established by the Political Constitution of the State [of Peru], the present Law, military and police regulations as well as judicial decisions.
In 2003, in the Marcelino Tineo Silva and Others case, Peru’s Constitutional Court stated:
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.
The Court further stated:
[T]he right to not be held incommunicado is not absolute, but subject to limitations because, as stated by Article 2(24)(g) of the Constitution, such a detention condition can be imposed if it is indispensable to solve a crime and if it is imposed in a manner and for such time as established by law. In such cases, “the authority shall be obliged to state without delay and in writing where the person is being held in detention”.
Consequently, there is no absolute right to not be held incommunicado. Such a detention condition can be imposed exceptionally in cases where it is indispensable to clarify a serious offence.
The Court also stated that “sentencing a person to a sentence involving incommunicado detention for a year is an unreasonable and disproportionate measure, constituting cruel and inhuman treatment.”
In 2004, in the Gabriel Orlando Vera Navarrete case
, Peru’s Constitutional Court stated that “the determination of a reasonable duration of detention must take into account the state’s obligation to investigate and punish the reported acts ... in order to avoid impunity for serious crimes and human rights violations.”