The International Human Rights Framework on the Right of Peaceful Assembly
Peru is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Peru is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
At regional level, Peru is a state party to the 1969 Inter-American Convention on Human Rights. Article 15 governs the right of assembly:
The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.
Peru has accepted the competence of the Inter-American Court of Human Rights to hear complaints by individuals under the jurisdiction of the state that their rights under the 1969 Inter-American Convention on Human Rights have been violated.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 2(12) of the 1993 Constitution of Peru (as amended) recognises the right of "peaceful assembly without arms":
Meetings on any premises, whether private or open to the public, do not require prior notification. Meetings held in squares and public thoroughfares require advance notification by the relevant authority, which may prohibit such meetings solely for proved reasons of safety or public health.
No dedicated national law comprehensively regulates assemblies. The Ministry of Interior, however, requires organisers of “Public Gatherings (meetings, marches, parades, processions, feasts and religious services)” to notify in advance, as set out in Directive 04-2011-10-1501. The Directive was updated in 2015.Directive 0009-2015-ONAGI "Sobre Otorgamiento de Garantías Inherentes al Orden Público (on Specific Aspects Granting Guarantees on Public Order)."
A 2010 decree permits the armed forces to be used to manage demonstrations. An additional law which entered into force in January 2014 exempts the armed forces and the police from all criminal responsibility for death or injuries caused while they are on duty.Law No. 30151, modifying the Criminal Code.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Use of force by the Peruvian Police is regulated under Legislative Decree 1186 of 2015. Article 4 submits all use of force to the principles of legality, necessity, and proportionality.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Article 8(3) in Legislative Decree 1186 restricts police use of firearms to when it is strictly necessary, and only when less extreme measures are insufficient or inadequate:
a. in self-defense or of other people in case of real and imminent danger of death or serious injury.
b. when a situation involving a serious threat to life occurs during the commission of a particularly serious crime.
c. when there is a real and imminent danger of death or serious injury as a result of the resistance offered by the person to be arrested.
d. when a person's life is put at real, imminent and current risk by an escapee.
e. where there is a real danger of imminent death of the police personnel or another person, by the action of a person who participates in a violent assembly.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2018 Concluding Observations on Peru, the Committee against Torture expressed its concern
at the number of people killed and wounded as a result of the actions of the security forces in response to the sometimes violent protest actions against mining projects and other extractive industries that have taken place in different regions of the country.
While noting a marked decline in this type of incident in recent years, the Committee regretted that Peru
has not provided the information requested on the investigations and related criminal proceedings carried out in respect of all the deaths of demonstrators caused by gunfire of the National Police and the Armed Forces during the period under review. On the other hand, although it takes note of the explanations offered by the delegation regarding the scope of the military jurisdiction and the applicable exception legislation, the Committee remains concerned about the abusive recourse by the State party to states of emergency and the consequent restriction and/or suspension of fundamental rights and freedoms to stifle, even preventively, this type of protest.
The Committee called on Peru to:
Carry out more mandatory training for all law enforcement officers and members of the armed forces on the use of force, especially in the context of demonstrations, taking due account of the Basic Principles on the Use of Force and Firearms by the Law Enforcement Officials.
In 2005, the Constitutional Court issued a judgmentPetition for Constitutional Relief dossier number 4677-2004-PA/TC-LIMA-Confederación General de Trabajadores del Perú.in which it called on the parliament to issue a law to
regulate the exercise of the right to assembly; indication of the authority with jurisdiction over the matter, which authority shall receive advance notices for meetings held in public squares and thoroughfares, and notify of just causes used to restrict or forbid the holding of a meeting, the setting of limits to a meeting, et cetera, taking the Conclusions of this judgment in due consideration.
After this judgment, the “Bill of an Act to Regulate the Exercise of the Freedom of Assembly”Bill 2222/2007/CR.was discussed in 2006-2011, but the Bill was dropped in September 2011.
Views of Civil Society
According to CIVICUS's report on Peru:
The Peruvian Constitution guarantees the right to peaceful assembly, specifically stating that gatherings in public spaces do not require prior authorisation but advance notification. When authorities fail to respond, however, requests are deemed to be denied. The latest report by the Human Rights Ombudsman Office recorded 211 social conflicts – 155 defined as "active" and 56 as "dormant" - and 179 protests in March 2015. As mobilisation in opposition to extractive industries intensified, legislative measures were passed limiting the right to protest and guaranteeing impunity for members of the security forces who employ violence. A 2010 decree permitted the deployment of the armed forces in demonstrations, allowed the use of force against ‘hostile groups’ and established military jurisdiction in human rights cases involving members of the military. An additional law that entered into force in January 2014 exempted the armed forces and the police from all criminal responsibility in cases of injury or death caused while on duty. There has since been an increase in excessive use of force by police during demonstrations, arrests and detention, resulting in injuries and even deaths. Recent reports have also criticised the existence of agreements between the national police and several mining companies, as a result of which the police also act as private security agencies.