Riot police walk in front of the closed congress building in Lima, Peru, Tuesday, Oct. 1, 2019.  © 2019 AP Photo/Martin Mejia

(Washington, DC) – Peru recently enacted a law eliminating an explicit requirement that the use of force by police must be proportionate and granting police special protections against criminal prosecution, Human Rights Watch said today. This creates a real risk that police abuse will increase and can contribute to impunity for the most serious human rights violations.

“The new law on police use of force is a recipe for abuse and impunity,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Instead of building a police force that is professional, effective, and accountable for abuses, Peru’s Congress is sending the message that police can get away with using excessive force, which could cause serious injuries or death.”

The president of Peru, the Ombudsperson’s office, the attorney general, and other institutions or groups with standing to do so should challenge the law before the Constitutional Court. Alternatively, Congress should repeal the law.

On March 27, 2020, Peru’s Congress enacted the Police Protection Act, Law No. 31012, which explicitly revokes the section of article 4 of Decree 1186 that establishes that any use of force by police to achieve a lawful law enforcement purpose must be proportionate to the threat.

Government obligations to protect the rights to life and bodily integrity include preventing excessive or arbitrary use of force by police under the principles of necessity and proportionality, as articulated in international human rights standards. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state that law enforcement officers shall, as much as possible, use nonviolent means before resorting to the use of force, and that they “may use force and firearms only if other means remain ineffective.” They also stress that “whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall … exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved” (emphasis added).

The Inter-American Court of Human Rights has affirmed this principle in several rulings, including a 2015 decision on an extrajudicial execution case in Peru, in which it asserted that state agents may only use force when strictly necessary to achieve a legitimate aim, and that, when using force, state agents should use means and methods that are proportional “to the resistance exerted and the existing danger.”

The new law ambiguously states that it does not apply when police officers use force “in contravention of” the Peruvian Constitution and international human rights norms “recognized by the Peruvian State and this law.” However, by revoking the legal provision that codified human rights standards, it directly undermines those very norms, Human Rights Watch said.

The new law also establishes a presumption that police actions are lawful by binding judges to interpret “in favor of the police” the determination of whether the police actions were “reasonable,” given the circumstances and what the officer knew at the time. The law also limits judges’ authority to order the pretrial detention of police officers accused of causing injuries or deaths through the illegal use of force.

These legal changes amplify existing problems with an article in Peru’s penal code, which the law changed just slightly. The article says that the police and armed forces cannot be held criminally responsible for causing injuries or even death “when fulfilling their constitutional duty” and using their weapons “in accordance with regulations.”

In a September 2019 ruling, Peru’s Constitutional Court had held that officers must respect the use of force rules established by international legal instruments, follow the principles of proportionality and necessity, and use the minimum force necessary to achieve their law enforcement objective.

The court also said that it would not be appropriate to establish “particular criteria” for police officers when determining whether pretrial detention is justified, and that judges should apply the same rules to police officers as to anyone else, as provided for in Peruvian law and international standards.

Peru’s Congress passed the Police Protection Act despite the opposition of the ministry of justice, which concluded that it undermined the principle of proportionality and, in the ministry’s view, “limited the autonomy” of judges. President Martín Vizcarra did not sign the new law, but congressional rules allow the head of the legislature to enact a law 15 days after its passage if the president has not formally sent objections and requested its reconsideration. 

On April 9, the government adopted a state of emergency decree to respond to the Covid-19 pandemic that suspended some constitutional rights and gave police and the armed forces exceptional search powers and the power to restrict people’s movements to ensure compliance with social distancing rules. As of April 6, Peruvian security forces had arrested 52,000 people, for a few hours, for violating social distancing rules.

“At a time when police and the armed forces have emergency powers to ensure compliance with social distancing and other measures against the coronavirus, accountability for any abuse of those powers is critically important,” Vivanco said. “The new law makes that much harder.”