Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
Peru’s IHL Manual (2004) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including:
(1) right to a … defence;
(7) attendance of witnesses for the defence.
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:
(1) right to … the means of defence;
(7) attendance of witnesses for the defence.
Peru’s New Code of Criminal Procedure (2004) states:
Every person shall have an inviolable and unrestricted right … to be assisted by a legal counsel of his or her choice or, if necessary, by a court-appointed defence counsel from the moment the person is summoned or detained by an authority.
Every person shall also have the right to have reasonable time to prepare his or her defence; to practice his or her own defence; to participate in the evidentiary proceedings on an equal footing; and to use any pertinent means of proof under the conditions stipulated by the law. The exercise of the right to defence shall cover every aspect of the proceedings, in the form stated by law.
Peru’s Code of Military and Police Justice (2006) states: “The right to a defence shall be guaranteed at all times, and shall be comprehensive [and] uninterrupted”.
The Code also states:
Any accused shall benefit from the judicial guarantees necessary for his or her defence; the police, prosecutor and judges shall have the duty to inform the accused of the following rights immediately and in a way he or she understands:
3. [The right] to be assisted by legal counsel from the first procedural act.
The Code further states: “A person deprived of his or her liberty shall have his or her right of defence guaranteed during the judicial process and during the enforcement of the penalty.”
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in the Preliminary Title: “In every proceeding, the right to defence must be guaranteed.”
In a chapter entitled “Procedural principles and guarantees”, the Code states:
1. Every member of the military or the police has the right to be informed of their rights, … and to be assisted by a defence lawyer of his own choosing or, if the case be, by a legal aid lawyer from the moment in which he or she is summoned or detained by the authorities.
He or she also has the right to be given reasonable time to prepare his or her defence; to exercise his or her right to material self-defence; to intervene on an equal bases in the gathering and processing of evidence; and to use the pertinent means of proof according to the law.
In a chapter entitled “The accused”, the Code also states:
The police, the prosecutor and the judges must inform the accused immediately and comprehensively of the following rights in order to ensure that he or she benefits from the safeguards essential for his or her defence:
3. To be assisted by a defence lawyer from the very beginning of the proceedings;
5. To make a statement within twenty-four hours of having been detained;
6. To amend his or her statement, with his or her defence lawyer being present, if the statement is relevant and if the amendment is not used as a means of delaying the proceedings. The amendment shall be made every time that the accused voices his intent to do so;
9. To have access to all available information from the moment at which the accused is informed of the existence of proceedings against him or her, in accordance with the provisions of the present Code.
In the same chapter, the Code also states:
The accused shall have the right to appoint a defence lawyer of his choosing. If the accused does not do this, he or she shall be assigned a legal aid lawyer. If the accused prefers to defend him- or herself, the judge shall permit this only if the accused is a lawyer and would not jeopardize the efficiency of the legal assistance.
Under the heading “Penal enforcement”, the Code states: “A person deprived of their liberty shall be guaranteed to enjoy the right of defence during the judicial process and during the enforcement of the punishment.”
In 2003, in the Marcelino Tineo Silva and Others case, Peru’s Constitutional Court found:
119. The Constitutional Court has stated that one of the most relevant constitutional procedural rights is the right of defence, recognised under Article 139(14) of the Constitution. “By virtue of this right it is guaranteed that all persons shall not be left defenceless in the legal determination of their rights and obligations, irrespective of the nature of the proceedings (civil, commercial, criminal, labour, etc.).” (Case Tineo Cabrera, Docket No. 1230-2002-AA/TC).
120. … One of the components [of the right of defence] is the right to communicate personally with a lawyer of his or her choice and to be assisted by him or her. As stated in the pertinent provision of the [Peruvian] Constitution, “(…) not to be deprived of the right of defence at any stage in the process (…)” and the “right to communicate personally with a lawyer of one’s own choosing and to be assisted by him or her from the moment the person is summoned or detained by any authority” shall be guaranteed.
121. …[T]he right not to be deprived of a defence must be understood in a criminal law setting to include the police investigation stage from its beginning. The right to be represented by a freely chosen lawyer cannot be reduced in scope by any law or by any norm with the quality of a law, and thus the right to be assisted by a lawyer cannot be interpreted as not covering the moment before giving the first statement to the police.