Observación (CEACR) - Adopción: 2024, Publicación: 113ª reunión CIT (2025)

Convenio sobre la abolición del trabajo forzoso, 1957 (núm. 105) - Perú (Ratificación : 1960)

Impact of the obligation to work for persons sentenced to a custodial sentence on the application of the Convention. The Committee notes the adoption in February 2021 of the Supreme Decree approving the single consolidated text of the Penal Enforcement Code (Supreme Decree No. 003-2021-JUS). Section 73 of this Decree establishes that work is a right and a duty for inmates. The Committee also notes that section 104 of the regulations implementing the Penal Enforcement Code (Supreme Decree No. 015-2003-JUS) provides that work in prisons is compulsory for convicted prisoners, while it is voluntary for inmates awaiting trial. The Committee further recalls that under sections 31 and 32 of the Penal Code, taken together, the penalty of community service can be applied as an autonomous penalty when it is specifically designated for a crime, or as an alternative penalty to a custodial sentence. Hence the Committee observes that the current criminal legislation establishes the obligation to work for persons serving a custodial sentence, as well as for those who have been sentenced to community service. The Committee emphasizes that penalties involving compulsory labour fall within the scope of the Convention when applied in one of the scenarios established in Article 1 of the Convention.

Article 1(a) of the Convention. Imposition of community service as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. For a number of years, the Committee has been referring to section 132 (defamation) and section 200(3) (extortion) of the Penal Code, which establish penalties of imprisonment (involving the obligation to work) or performance of community service for offences which, as a result of being worded in very general terms, could have an impact on Article 1(a) of the Convention.

The Committee notes the Government’s indication in its report that there is nothing in the national criminal legislation that criminalizes the expression of political views or opposition to the established political, social or economic system. In response to the Committee’s request for information on the application of the above-mentioned provisions, the Government provides information on the number of proceedings instituted and rulings handed down for the crime of extortion (section 200(3) of the Penal Code) between 2018 and 2022. During this period, 58 convictions were handed down for this offence. The Government also refers to the ruling of the Constitutional Court of Peru handed down in case 0009-2018-PI/TC in which the Court considered that section 200(3) of the Penal Code does not violate the fundamental right to freedom of assembly, since it is not about accommodating violence or unduly seeking economic or other benefits or advantages.

The Committee also notes the report of the Office of the United Nations High Commissioner for Human Rights, of 19 October 2023, containing observations on the human rights situation in the context of the protests in Peru. According to this report, up to August 2023, a total of 36 persons were under investigation for alleged crimes in the context of the protests, including for extortion, which is criminalized under section 200 of the Penal Code.

The Committee also notes that, according to the report of the Inter-American Commission on Human Rights on the situation in Peru in the context of social protests, published in April 2023, criminal offences such as extortion, obstruction of public throughfares and disturbance of public order are commonly used indiscriminately to criminalize protest. Regarding this last point, the Committee notes section 452 of the Penal Code, establishing the offence of disturbing public order, under which any person who slightly disturbs the public peace by using means likely to cause alarm, or who verbally shows lack of respect or consideration towards an authority without seriously offending it, or who disobeys orders given by it, shall incur the penalty of community service of 20 to 40 days.

Lastly, the Committee notes that the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, in its special report on the situation of freedom of expression in Peru, published in December 2023, referred to the use of criminal law mechanisms against journalists legitimately exercising their right to provide information. Specifically, it highlighted the constant use of judicial harassment, particularly towards investigative journalism, through criminal law concepts (libel, slander and defamation) as a mechanism for putting pressure on journalists and communicators.

The Committee wishes to recall that the primary objective of Article 1(a) is to protect persons who, in the exercise of freedom of expression or other related civil liberties, express political views or views ideologically opposed to the established political, social or economic system, by stipulating that penalties involving an obligation to work cannot be imposed on them. The Committee also recalls in this regard that situations where the expression of views opposed to the established system occurs through recourse to violence or incitement to violence are outside the scope of the protection granted by the Convention (see 2023 general observation on the Convention).

The Committee notes that, according to the information provided by the Government and that contained in the reports of the Office of the High Commissioner for Human Rights and the Inter-American Commission on Human Rights, the criminal provision covering the offence of extortion (section 200(3)) is applied in practice and convictions have been handed down on the basis of this provision. With regard to the offence of disturbing public order (section 402), which is reportedly invoked against persons participating in protests, the Committee notes that this is also drafted in sufficiently broad terms to have a potential impact on Article 1(a) of the Convention.

The Committee therefore requests the Government to take the necessary measures to ensure that individuals who express political views or peaceful opposition to the established political, social or economic system cannot incur penalties involving the obligation to work, including measures to strengthen the knowledge of judicial officials regarding the scope of limitations on the exercise of liberties permitted for the purpose of safeguarding public order. In this regard, the Committee also requests the Government to continue providing information on the application of sections 132, 200(3) and 452 of the Penal Code, including information on the number of charges brought, court rulings handed down, specific penalties imposed and acts that have resulted in convictions.

The Committee is raising other matters in a request addressed directly to the Government.