386 Peru PERU 1 I. General Information Covering a total area of 1,285,215 km 2. Peru is a unitary state composed of 24 departamentos and a constitutional province, 2 with Lima as the national capital. In 2002 Peru began a decentralization process that led to the modification of its Constitution. According to this legal text, the territory of Peru is made up of regions, departments, provinces and districts, within whose boundaries the national, regional and local government is constituted and organized, thus preserving the unity and integrity of the State and the Nation. The regional level of government is for regions and departments, while local government manages the provinces, districts and settlements. 3 In 2005 Peru had a population of 27,219,264. 4 It is defined as a multiethnic and multicultural country composed mainly of mestiza and indigenous peoples of the Andean and Amazon regions. The population density is 21.2 inhabitants/km. 2 Based on the population of 26,152,265 reported in the last census, in 2005, men accounted for 49.94% of the population and women, 50.05%. 5 In 2006, an estimated 74.41% of the population resided in urban areas and 25.58% in rural ones. 6 Peru has a birth rate of 23 per 1,000 inhabitants, 7 and in 2005 life expectancy was 72 years, an improvement over the 1990 figure of 63 years. 8 In 2004, 51.6% of Peruvians were living in poverty, and 19.2% in extreme poverty. 9 The literacy rate is 88.3%. 10 Peru has a medium Human Development Index of 0.767, 11 lower than those of Chile, Colombia and Venezuela, but higher than Ecuador, Paraguay, and the Dominican Republic. Its Gini Coefficient for 2004 was 0.505. 12 The 2004 GDP was US$ 65 billion and increased to US$ 73 billion in 2005, 13 with growth of 5.4% in 2004, 6.4% in 2005, and 7.6% estimated for 2006. 14 2005 per capita income was US$ 2,610. 15 II. Judicial System Highlights Over the past two years the budget of Peru s justice system has developed as follows: In 2006 the Judicial Branch executed a budget of 786,232,540 soles (US$ 243,039,425), the Public Prosecutor s Office, or PPO, 349,479,601 soles (US$ 108,030,788) and the Ministry of Justice 140,969,068 soles (US$ 43,576,219). 16 In 2006 the budgets of these three institutions represented 3.03% of the national executed budget. The projected budgets for 2007 are as follows: Judicial Branch 839.962.884 soles (US$ 263.228.73), PPO 381.526.106 soles (US$ 119.563.17), and the Ministry of Justice 60.397.760 soles (US$ 18.927.53). 17 In 2006 Peru had 7.5 judges, 7.1 prosecutors and 2.3 public defenders per 100,000 inhabitants. 18 The National Plan for the Comprehensive Reform of the Justice Administration (Plan Nacional de Reforma Integral de la Administración de Justicia), prepared by the Special Commission for the Comprehensive Reform of the Justice Administration (CERIAJUS) in 2004, is the most important document on this process. Built through a political-institutional agreement, the plan proposes a systemic approach to justice problems and contains policy proposals for overcoming key problems. 19 The Ministry of Justice is responsible for following up on the recommendations made in the Plan. In 2003 the National Citizen Security System (Sistema Nacional de Seguridad Ciudadana, SINASEC) 20 was created. The system involves judges, prosecutors, public defenders, police, and the penitentiary system. Under this initiative, professional peace courts were created in 2004 within police commissaries that handle misdemeanors. 21 Between 2005 and 2006 a total of 12 commercial courts were created. Commercial 1 The report on Peru was based on responses to the questionnaire submitted by the Judicial Branch, Public Prosecutor s Office (Ministerio Público), and Ministry of Justice. Telephone interviews were also conducted with representatives of justice sector institutions and legislation and Websites were consulted, as well as data, laws and studies published by academic and civil society institutions in Peru and abroad. This report contains sections from the Report on Judicial Systems in the Americas 2004-2005.
Report on Judicial Systems in the Americas 2006-2007 387 justice arose from a project initiated in 2004 by the Judicial Branch with international cooperation from USAID. The project foresees the establishment of 22 commercial courts across the country. On July 1, 2006 the new Criminal Procedure Code came into force in the judicial district of Huaura (Legislative Decree No. 957). The code was enacted in June 2004, and seeks to replace the mixed-inquisitorial criminal procedure model that has been in force since 1940 with an oral, adversarial one. The new Code will be implemented gradually. In 2007 it will be introduced in the judicial districts of La Libertad, Callao, Moquegua, and Tacna. 22 In 2006 the Peruvian justice system was implementing two major projects. The first is the Justice Administration Service Improvement Project (Mejoramiento de los Servicios de Administración de Justicia), valued at US$ 15,006,071, and the second is entitled Support for Justice System Reform in Peru (Apoyo a la reforma del sistema de justicia del Perú, JUS PER), valued at 12 million Euros, which were contributed by the European Community. In January 2007 the Registry of Unpaid Child Support Debtors (Registro de Deudores Alimentarios Morosos) 23 was created under the purview of the Judicial Branch. 24 III. Institutions 1. Overall Structure and Operation of the Judicial System The Peruvian judicial system is composed of the Judicial Branch, the National Judicial Council, the Ministry of Justice, the Public Defender s Office, the Public Prosecutor s Office, the Constitutional Tribunal, and agencies with special responsibilities, such as the National Penitentiary Institute, the Medical Examiner s Office, and the Ombudsman s Office. Like the Constitutional Court and the National Judicial Council, Peru s Public Prosecutor s Office is autonomous of the Judicial Branch. Public defender services and legal aid are public legal defense responsibilities that, with the National Penitentiary Institute, come under the purview of the Ministry of Justice. Peru has a single national police force that forms part of the Ministry of the Interior and, like the Medical Examiner s Office (Instituto de Medicina Legal), assists the Public Prosecutor s Office in criminalistic work through the Office of Criminalistics. 2. Judicial Branch 25 2.1. Institutional Mission and Structure This body exercises jurisdictional authority. In the words of the Constitution (Article 138, Paragraph 1), it is empowered to administer justice, 26 which includes the following basic responsibilities: Protection of basic rights Protection of ordinary rights and legitimate interests Punishment of crimes Ensuring the legality of administrative authorities actions Controlling the constitutionality and legality of the exercise of the authority to develop regulations Interpreting the constitutionality of laws and legal rules and regulations 27 Peru s Judicial Branch has political, administrative, economic, and disciplinary autonomy as well as jurisdictional independence. 28 The Branch consists of two different types of entities: administrative agencies and the courts. 29 The Office of Judicial Supervision (Oficina de Control de la Magistratura) oversees the courts, while the Judicial Academy (Academia de la Magistratura) serves as an educational and training institute. The Constitutional Court and National Judicial Council (Consejo Nacional de la Magistratura) have functional and administrative autonomy from all public institutions. In order to properly perform its jurisdictional, supervisory, and administrative role, the Judicial Branch is divided into judicial districts, each of which is under the supervision and responsibility of a Superior Court. The territory of these judicial districts generally coincides with the country s departamentos, with some exceptions. 30 There are 29 superior courts in Peru, 31 two of which operate in the capital, namely the Lima Superior Court (the largest in the country) and the Northern Cone Superior Court. The Callao Superior Court is also in the immediate geographic vicinity. The jurisdictional bodies of Peru s Judicial Branch are the Supreme Court, superior courts,
388 Peru specialized and mixed courts, and professional and non-professional peace courts. 32 2.1.1. Supreme Court Peru s Constitution holds that the Supreme Court shall rule in annulment or final instance when the action is filed in a Superior Court or before the Supreme Court itself, as provided for by law. 33 The Court is the court of final appeal and hands down final rulings on substantive matters of law. 34 The Supreme Court is divided into permanent and transitory chambers, each of which has five justices and is presided over by a delegate of the Chief Justice. Special chambers exist for civil, criminal, and constitutional/social matters. In December 2006 there were two civil chambers, three criminal chambers, and two for constitutional and social matters. 35 2.1.2. Superior Courts The jurisdiction of a superior court extends over a particular judicial district. Each has specialized and mixed chambers constituted by the Judicial Branch Executive Board in response to each district s needs. 36 A superior court may have chambers that operate in different cities or provinces within the same judicial district. Each chamber has three superior court judges and is presided over by the most senior judge. Superior court chambers rule in the second and final instance, except where otherwise provided by law. In December 2006 there were 174 superior court chambers throughout the country, 37 55 more than in 2004. These are distributed as follows: 51 civil chambers, 77 criminal, nine labor, two family, and 35 mixed. 38 2.1.3. Specialized and Mixed Courts Based in provincial capitals, these courts cover the following subject matters: civil, criminal, labor, and juvenile justice. 39 Where specialized courts are not available, cases are heard by a mixed court in accordance with the jurisdiction established by the Judicial Branch Executive Board. Specialized and mixed courts have the same status. In 2006 Peru had 955 specialized and mixed courts, 174 more than in 2004. They were distributed as follows: 219 civil, 327 specialized criminal, 73 labors, 100 specialized family, and 236 mixed. 40 2.1.4. Professional Peace Courts These courts rule on civil, labor, family, small claims, and misdemeanor matters, as well as appeals of decisions issued by the regular peace courts (juzgados de paz). 41 The Judicial Branch Executive Board creates these courts considering population density and the rural or urban nature of the judicial district; it also establishes the requirements needed to create them. 42 Rulings of both the professional and regular peace courts are appealed to the respective specialized and mixed courts. In December 2006 Peru had 458 professional peace courts, an increase of 84 courts over 2004. 43 2.1.5. Professional Peace Courts in Police Commissaries In 2003 a new procedure was established for judging misdemeanors 44 when the Judicial Branch and the Ministry of the Interior designed a pilot plan aimed at introducing professional peace judges in commissaries of Metropolitan Lima. According to the National System of Citizen Security, which is responsible for coordinating this Project, its aims, among others, are: to promote speedy judicial proceedings for misdemeanors and foster a culture of citizen reporting of minor offenses, which though they do not seriously harm society, do generate a perception of public insecurity. As of December 2006, 15 professional peace courts had been installed in police commissaries across the country. 2.1.6. Peace Courts These courts constitute the final level of the Judicial Branch hierarchy. Their work is primarily conciliatory and they operate in towns, settlements and small districts. Unlike other judicial instances, peace court judges are elected by local inhabitants for a two year term. This individual must be distinguished and demonstrate honesty and integrity, but does not necessarily have to be an attorney at law. 45 Peace court judges come under the purview of the Superior Court, which ratifies their appointment. 46 They hear and rule on matters such as child support, where the relationship is firmly established, eviction and notice of dismissal, payments, and prohibitions on retaining and recovering goods. 47 They also investigate and punish lesser offenses.
Report on Judicial Systems in the Americas 2006-2007 389 The law expressly precludes the peace courts from conciliating or ruling on certain types of cases in important or complex matters that merit the attention of a professional judge. These include the declaration of heirs, inheritance rights, wills, constitutional rights, and others expressly stipulated by law. 48 A survey of peace court judges conducted by the Instituto de Defensa Legal in 1999 reported that 32% of these officials resolve cases on the same day, while 40% said they did so in less than a week. In other words, 72% of cases in this jurisdiction are resolved within a very short period of time. 49 There are around 4,800 peace court judges nationwide, many more than formal judges. As they employ their own criteria of justice and are not obligated to rule in strict adherence to the law, they each are able to rule on thousands of cases per year. 50 Peace justice is especially prevalent in rural zones, and notably, it is free of charge. Peace court judges also do not receive remuneration from the government. 51 Table 1 Hierarchical Distribution of Chambers and Courts in the Judicial Branch 2006 ENTITY Chambers Courts Supreme Court Chambers 7 Superior Court Chambers 184 Specialized Courts 955 Professional Peace Courts 458 TOTAL 1,413 Source: Judicial Branch. 2.2. Government and Management The Judicial Branch is governed and directed by its President, the Supreme Court Plenary, and the Judicial Branch Executive Board. 52 2.2.1. President of the Judicial Branch Under Peru s current Constitution, the Chief Justice of the Supreme Court is also the President of the Judicial Branch 53 and as such is the head of this branch of government. 54 He or she is therefore also the highest executive authority of this institution. 55 The person holding this position is elected to serve for a period of two years by absolute majority of the Supreme Court plenary in a secret vote. Reelection is not allowed. If no candidate obtains the half plus one vote required, a second vote is taken on the same date among the candidates obtaining the two highest voting percentages. 56 The President of the Judicial Branch has the following powers, among others: to represent the judicial branch; to convene and preside over the Supreme Court Plenary, with the deciding vote; to provide for the implementation of decisions adopted by the Plenary; to be responsible for executing the Judicial Branch budget; to appoint justices to the respective Supreme Court specialized chambers; and to appoint justices to special office. He or she also must ask the National Judicial Council to apply all measures necessary to discipline or remove judges from office that are proposed by the Office of Judicial Supervision. 57 The Supreme Court Chief Justice delivers a national address during the ceremony held to open the judicial year in January of each year. In this address he/she describes the work of the courts, the most important activities carried out during the previous period, and the fulfillment of the judicial development policy. The address also touches on the improvements and reforms that are deemed necessary for the coming year and gaps and weaknesses in current laws that need to be addressed. This report often includes a presentation on the budget executed during the fiscal year, but does not necessarily include details of expenditures. 58 2.2.2. Supreme Court Plenary The Constitution establishes the Supreme Court Plenary as the Judicial Branch s highest deliberative body 59 As such, this body makes decisions on the institutional advancement of the Branch and regarding all other matters not expressly delegated to other bodies. 60 The Plenary of this high court is presided over by the Supreme Court Chief Justice and includes all regular sitting justices. The bench sits in ordinary and special session. Ordinary sessions are held at least twice per year, including once at the opening of the judicial year. Special sessions are held when so convened by the Chief Justice, when at least two-thirds of all justices so request, by agreement of the Executive Board, or as stipulated by law. The Supreme Court Plenary has the following duties and powers: Approve general judicial branch policy proposed by the Executive Board
390 Peru Choose the Supreme Court representative to the National Electoral Jury by a secret vote Choose the Supreme Court representative to the National Judicial Council by a secret vote Systematize and disseminate jurisprudence from the specialized Supreme Court chambers Make available on a quarterly basis the Supreme Court rulings that set case law that is binding on all courts Designate the supreme court justices who shall sit on the Judicial Branch Executive Board Designate the justice who will head the Office of Judicial Supervision Present legislative bills to Congress. 2.2.3. Judicial Branch Executive Board This Board, the Consejo Ejecutivo del Poder Judicial, is the third body of governance of the Judicial Branch. It consists of the Judicial Branch President, who presides and has the deciding vote; two Supreme Court justices chosen by the Plenary; a sitting superior court judge chosen by the presiding superior court judges, a specialized or mixed court judge and, as of 2001, a representative chosen by the Council of Law School Deans of Peru. 61 The representativeness of this Board is an innovation over the former governance system, which rested solely with the Supreme Court Chief Justice and the Plenary. 62 The Board has the authority to propose general Judicial Branch policy to the Supreme Court and approve the Branch s development plan; determine the number of permanent specialized courts and, in special cases, the number of Supreme Court transitory chambers; approve the Judicial Branch budget proposed by the Executive and execute it once approved; and resolve in final instance disciplinary measures, fines and suspensions imposed against judges by the Office of Judicial Supervision. Members of the Board are appointed for a two year term. Under the Judicial Branch s organizational structure, the Executive Board includes the following offices: General Management, General Inspection, Prosecutor s Office, Secretariat, Center for Judicial Investigation, Office of Information, and Legal Counsel. 63 2.3. Other Judicial Branch Entities 2.3.1. Office of Judicial Supervision (OCMA) The Office of Judicial Supervision (Oficina de Control de la Magistratura, OCMA) is responsible for disciplinary action within the justice administration and exercises authority over judges and support staff. 64 The OCMA is presided over by a Supreme Court justice appointed by the Court and includes judges from Superior Courts and specialized and mixed jurisdictions whose number and appointment is determined by the Judicial Branch Executive Board. The judges work exclusively in the Office for a single, non-renewable three-year term. The Judicial Branch Statutes stipulate that the OCMA is responsible for investigating the conduct, competence and performance of Judicial Branch staff and judges, while not precluding jurisdictional bodies from conducting regular evaluations at different stages of proceedings. OCMA s main duties are to: verify that judges and support staff comply with legal and administrative provisions for their jurisdiction, as well as those issued by the Supreme Court Plenary and the Judicial Branch Executive Board; on its own initiative, by mandate of the Supreme Court bench, the Executive Board or the Chief Justice, conduct inspections and investigations of bodies, court and administrative staff; process complaints of official actions and complaints against judges and court staff; inform the Executive Board and the Chief Justice of any infractions detected; and apply in first instance the disciplinary measure of suspension, which shall be resolved in final instance by the Judicial Branch Executive Board. 65 2.3.2. Judicial Academy The Judicial Academy (Academia de la Magistratura) is responsible for educating and training judges and prosecutors at all levels, to prepare and qualify them to seek posts in the respective agency. It has a governing body (Board of Directors), executive officers (Director General, Academic Director and Administrative Secretary), and support groups (Advisory Committee and Academic Council). The Academy is a public legal entity that is under the purview of the Judicial Branch and enjoys administrative, academic and financial independence. The Board of Directors is the Academy s highest body and is composed of seven Councilors, appointed as follows: three by the Judicial Branch Executive Board, two by the Board of Supreme Prosecutors, one by the National Judicial Council and one by the Council of Law School Deans. The Director General of the Academy also sits on the Board without the right to vote. Those appointed must be
Report on Judicial Systems in the Americas 2006-2007 391 individuals with high moral standing and judicial experience, or with not less than twelve years of professional legal practice or law professorship. Councilors are appointed for a two year term and may be reappointed. They are not subject to imperative mandate. The Board President is chosen by a majority vote of the legal number of its members, also for a two year term. 66 2.4. Transparency, Accountability, and Access to Information Access to public information and transparency in Peru s Judicial Branch is governed by Law No. 27.806. 67 The aim of this law is to promote the transparency of acts of the State and regulate the basic right of access to information enshrined in clause 5, Article 2 of the Constitution. Among other things, it stipulates that all information the State possesses is presumed to be public, except where expressly indicated otherwise. The State is required to provide information requested, in fulfillment of the principle of public access. In this regard, the Judicial Branch provides access to institutional data through its Website. 68 In 2004 the Judicial Branch Code of Ethics came into force. This document proposes to serve as an ethical guide to improve the service of justice. Its aim is to assist judges with ethical and professional dilemmas, and to help people understand the judiciary s role. 69 This Code also provides that judges make regular declarations of income and assets. 70 Finally, it establishes the Judicial Ethics Committee, a body that is presided over by a sitting Supreme Court justice (chosen by consensus of the Supreme Court plenary) and four inactive or retired judges of any instance appointed by the Plenary. 71 In regard to accountability, the Judicial Branch President must remit financial reports to the General Comptroller s Office accounting for all expenditures. 72 Legal provisions govern the publication of Sworn Statements of Income and Assets of public servants and officials. 73 The Judicial Branch, through the Office of Judicial Supervision (OCMA), requests sitting judges and court officials to submit yearly sworn statements of income and assets for its assessment. In JSCA s Index of Online Access to Judicial Information 2006 Peru was given a rating of 50.5% for access to online information about the courts. This places Peru s courts in 8 th place, lower than Costa Rica and Argentina but higher than the Dominican Republic and Colombia. This is a 10.2% improvement over the 2004 study, when Peru placed 13 th. Finally, according to the Judicial Branch s Website, citizen approval rating of this institution for 2005 and 2006 has been as follows: Table 2 Approval Rating of the Judicial Branch, 2003-2006 Indicator/ year 2006 2005 2004 2003 Public approval 15% 12% 11% 14% Source: Judicial Branch Website. 2.5. Legal Aid The Judicial Branch is not responsible for public defense services. This role is performed by the Public Defender s Office and People s Legal Aid Service (Dirección de Defensoría de Oficio y Servicios Jurídicos Populares), under the purview of the Ministry of Justice. The structure of this entity is described in point 4 of this section. 2.6. Reform Projects Underway In 2006 the Peruvian justice system implemented two important projects with international cooperation assistance. Also, in December 2006 the Office of the new Judicial Branch President presented the 2006-2008 work plan and established judicial reform measures. Projects underway and measures adopted by the new President are explained in detail in section VII of this report. 2.7. Budget Over the past two years the Judicial Branch budget has increased. However, in the end, including all types of funding for 2006, the opening budget represented less than 1.5% of the national budget, as has been the case since 2000. Also, the national budget executed in 2005 was approximately 8% higher than the initial budget, and that of 2006 was 16% higher than the initial budget. The main funding source for the Judicial Branch are regular resources (80% in 2006 and 84% in 2005), followed by directly collected resources (11% in 2006 and 12% in 2005). In 2006 the Judicial Branch budget included external credit received from international agencies (1% in 2006 and 2005) and donations (8% in 2006 and 3% in 2005).
392 Peru Table 3 Evolution of the Judicial Branch Budget 2000-2006 in soles Year General National Budget (1) Judicial Branch Budget (2) % Participation (All sources) (All sources) 2006 50,862,269,691 727,627,037 1.43 2005 49,117,162,238 634,708,584 1.29 2004 44,115,387,252 553,600,000 1.25 2003 44,516,006,305 556,526,000 1.25 2002 35,771,987,911 532,048,291 1.49 2001 35,711,747,654 461,975,000 1.29 2000 34,045,803,045 449,886,321 1.32 (1) and (2) Opening Budget. Source: Judicial Branch. Table 4 Evolution of the Judicial Branch Budget 2004-2006 in soles and US$ 74 Budget 2006 2005 2004 Opening budget soles 727,627,037 634,708,584 553,600,000 Executed budget soles 859,325,433 688,888,133 641,496,544 Opening budget US$ 224,923,349 192,510,945 162,346,041 Executed budget US$ 265,633,828 208,943,929 187,901,741 Source: Judicial Branch. Table 5 2006 Judicial Branch Budget by Source of Funding in soles Funding Source Institutional Opening Budget Final Executed Budget % Variation % Structure Regular Resources 636,077,037 687,123,747 8.04 80 Resources Collected Directly 80,000,000 93,212,424 16.52 11 Resources from Official External Credit Operations 11,620,000 11,620,000 0 1 Donations and Transfers 0 67,369,262 0 8 TOTAL 727,627,037 859,325,433 18.10 100 Source: Judicial Branch Website. Table 6 2005 Judicial Branch Budget by Source of Funding in soles Funding Source Institutional Opening Budget Final Executed Budget % Variation % Structure Regular Resources 556,561,404 579,711,244 4.16 84 Resources Collected Directly 78,147,180 84,999,773 8.77 12 Resources from Official External Credit Operations 0 6,540,000 0 1 Donations and Transfers 0 17,637,116 0 3 TOTAL 634,708,584 688,888,133 8.54 100 Source: Judicial Branch Website.
Report on Judicial Systems in the Americas 2006-2007 393 Table 7 Judicial Branch Budget 2006 by Generic Expense Group and Funding Source in Soles Generic Spending Ordinary Directly External Donations TOTAL % Group Resources Collected Credit and Resources Resources Transfers General Spending 653,879,462 93,212,424 0 10,772,955 757,864,841 88 Personnel and Social Obligations 342,103,939 94,500 0 0 342,198,439 40 Benefits 97,964,844 0 0 0 97,964,844 11 Goods and Services 212,727,738 1,796,139 0 10,772,955 225,296,832 26 Other Regular Costs 1,082,941 0 0 0 92,404,726 11 Capital Spending 33,244,285 0 11,620,000 56,596,307 101,460,592 12 Investments 19,254,705 0 0 12,422,379 43,297,084 5 Other 13,989,580 0 44,173,928 58,163,508 7 TOTAL 687,123,747 93,212,424 11,620,000 67,369,262 859,325,433 100 Source: Judicial Branch Website. Table 8 2005 Judicial Branch Budget by Generic Expense Group and Funding Source (in soles) Generic Expense Ordinary Directly External Donations TOTAL % Group Resources Collected Credit and Resources Resources Transfers General Expenditures 567,266,217 83,749,773 0 5,861,136 656,877,126 95 Personnel and Social Obligations 285,678,821 0 0 285,678,821 41 Social Security 78,039,100 0 0 78,039,100 11 Goods and Services 177,586,712 1,484,796 0 5,861,136 184,932,644 27 Other 25,961,584 82,264,977 0 108,226,561 16 Capital Spending 12,445,027 1,250,000 6,540,000 11,775,980 32,011,007 5 Investments 8,315,000 1,250,000 0 0 16,105,000 2 Other 4,130,027 0 0 11,775,980 15,906,007 2 TOTAL 579,711,244 84,999,773 6,540,000 17,637,116 688,888,133 100 Source: Judicial Branch Website. Eighty-eight percent of the executed budget for 2006 corresponded to general expenditures. Capital spending represented 12%. In 2005 the general expenditures represented 95% of the budget and capital spending only 5%. 2.7.1. Court Fees Court fees are required for most cases. 75 Some exceptions are: litigants receiving legal aid (those living in poverty), litigants in areas that face administrative difficulties (for example, the judicial districts of Arequipa, Huancavelica and Puno), complainants in summary child support cases, complainants in habeas corpus actions, and parties to criminal proceedings, except for the presentation of criminal complaints. 76 Court fees have been applied to procedural events since 1987, with those actions or procedures incurring fees depending on the nature
394 Peru of the procedure (contentious or not) and its seriousness. In general, fees are charged for the presentation of evidence, filing of appeals, annulments and complaints, and for proceedings held outside of the judicial setting. The value of the court fee depends on the seriousness of the suit. Thus, appealing a judicial order costs anywhere from 32 to 288 new soles (US$ 9.50-$ 87) and appealing a sentence costs from 128 to 1,152 new soles (US$ 38-$ 372). Meanwhile, an appeal for annulment to the Supreme Court costs between 512 and 2,720 new soles (US$ 165-$ 890), and requests for protective measures between 320 (US$ 95) and 3,840 new soles (US$ 1,180). 77 The court fee collection system is managed by the Banco de la Nación (State Bank). In some exceptional cases payment is accepted in other forms; for example, where there is no Banco de la Nación branch, the litigant must pay the clerk of the respective court, who deposits the fees collected each month in the closest branch. 78 Eighty percent of the funds collected go to salaries and 20% to investments in the justice system. Table 11 Gender of Judicial Branch Magistrates 2004-2006 80 Magistrates Year 2006 2005 2004 M F M F M F Supreme Magistrates 43 3 39 2 41 2 Superior Magistrates 435 158 366 120 370 100 Specialized Judges 633 322 582 293 569 288 Justices of the Peace 279 187 267 170 234 165 TOTAL 1,390 670 1,254 585 1,214 555 Source: Judicial Branch. The past three years have seen an increase in the number of judges, particularly superior magistrates and specialized judges. Most of judges are men. For example, in 2006 73.3% of judges were men. Table 12 Staff in Jurisdictional Agencies 2004-2006 81 Table 9 Execution of Income-Directly Collected Income: Court Fees in Soles Execution through fees 2006 2005 2004 2003 89,511,293 79,161,103 66,049,227 63,607,824 Source: Judicial Branch Website. Staff Year 2006 2005 2004 Auxiliary and administrative offices 11,258 10,152 9,821 Source: Judicial Branch. Table 13 Administrative Personnel in Non-Jurisdictional Agencies 2004-2006 82 2.8. Human and Material Resources Staff Year 2006 2005 2004 Magistrates Table 10 Judicial Branch Magistrates 2004-2006 79 Year 2006 2005 2004 Supreme Magistrates 46 41 43 Superior Magistrates 593 486 470 Specialized Judges 955 875 857 Justices of the Peace 466 437 399 TOTAL 2,060 1,839 1,769 Source: Judicial Branch. Workers 832 809 808 Source: Judicial Branch. In 2006 a total of 11,258 people worked in jurisdictional agencies. Of these, 2,060 were magistrates and 9,198 were legal or administrative support staff members. Judges in all types of agencies represented 81.7% of the staff, and support staff members 18.3%. Nonjurisdictional or government and management agencies have 832 employees, which represents an increase over the 808 employed in such offices in 2005.
Report on Judicial Systems in the Americas 2006-2007 395 Table 14 Computers in the Judicial Branch 2004-2006 Computers Year 2006 2005 2004 In jurisdictional agencies 8,905 8,905 8,214 In non-jurisdictional agencies 2,226 2,226 2,053 Total 11,131 11,131 10,267 Source: Judicial Branch. Table 15 Computers with an Internet Connection 2004-2006 Computers Year 2006 2005 2004 Connected to the Internet 2,858 2,600 1,600 Not connected to the Internet 8,273 8,531 8,667 Total 11,131 11,131 10,267 Source: Judicial Branch. The Peruvian Judicial Branch has 0.79 computers per employee in jurisdictional offices and 2.67 computers per employee in nonjurisdictional agencies. 2.9. Case Movement The process of compiling statistics in the Judicial Branch is subject to a specific methodology. 83 This process follows three steps: information gathering, processing, and analysis. The gathering process includes filling in record books at each jurisdictional agency (most of the time, manually), filling out forms, data entry into electronic databases, quality control, and validation. Processing involves managing the databases that contain consults and reports and executing a tabular plan. Analysis and publication of results allow for the drafting of an Executive Summary or analytical document and summary of the results, which serve as the basic tool for making decisions at the government level. The Appendices contain a detailed version of the tabular plan. The Judicial Branch has described evolution in the area of case movement over the past two years as follows: In 2005 and 2006 the Judicial Branch resolved less than 40% of the cases heard annually. For both years, most of the cases terminated involved misdemeanors. In 2005 the second most common type of case was civil suits and in 2006 it was criminal cases. According to the Judicial Branch Website, the most important indicators for the institution in evaluating performance are: citizen acceptance, judicial resolution, judicial delays, and quality of confirmed sentences. According to the World Bank, 35 procedures were required to enforce the terms of a contract, and it could take an average of 300 days to do so at a cost of 34.7% of the debt. 87 3. Public Prosecutor s Office 88 3.1. Institutional Structure This autonomous agency has as its mission providing on its own accord or in response to the request by a party judicial action in defense of legality and the public interests protected under the law; ensuring the independence of jurisdictional agencies and the correct administration of justice; representing the State in judicial procedures and handling crime investigation from the outset (to this end, the National Police is required to respect the mandates of the Public Prosecutor s Office, or PPO, in its area); exercising criminal action on its own accord or in response to a request; issuing a statement prior to judicial resolutions where the law requires; exercising initiative in the formation of laws; and reporting legal loopholes or defects to Congress or the President. 89 The main responsibilities of this agency are the defense of legality, citizens rights and the public interest; representing society at trial in order to defend the family; ensuring the correct administration of justice; and other areas listed in the Constitution and legal order. 90 The PPO is organized hierarchically, which means that officials must submit to the instructions issued by their superiors. 91 The agency is headed by the National Prosecutor, and under his command there is an established hierarchical order in accordance with the organization of the Judicial Branch. Thus, Supreme Prosecutor s Office is at the level of the Supreme Court; Superior Prosecutor s Offices in the criminal and civil ambits correspond to specialized chambers in each court of justice; and Provincial Public Prosecutor s Office specialized in criminal cases, civil suits and family matters correspond to specialized courts. 92
396 Peru Table 16 Case Movement by Specialty 2006 84 Judicial Specialty Pending Cases Total at Disposals Resolution Cases Pending Files Filed Beginning of Year Rate at End of Period Civil 556,293 483,861 1,040,154 396,484 38,1% 643,670 Criminal 514,652 447,424 962,076 381,600 39,6% 580,476 Labor 182,903 116,464 299,367 108,314 36,1% 191,053 Civil Family 310,737 218,208 528,945 194,297 36,7% 334,648 Infraction Family 18,496 10,996 29,492 9,498 32,2% 19,993 Protection Family 26,303 16,692 42,995 12,608 29,3% 30,387 Misdemeanors 73,587 87,242 160,829 90,029 55,9% 70,799 TOTAL 1,682,971 1,380,886 1,192,831 1,871,027 38,2% 1,871,026 Source: Judicial Branch. Table 17 Case Movement by Specialty 2005 85 Judicial Specialty Pending Cases Total at Disposals Resolution Cases Pending Files Filed Beginning of Year Rate at End of Period Civil 571,594 477,654 1,049,248 399,900 38,1% 556,293 Criminal 482,851 331,098 813,949 266,261 32,7% 514,652 Labor 223,599 147,777 371,376 142,722 38,4% 182,903 Civil Family 274,205 222,366 496,571 173,551 34,9% 310,737 Infraction Family 14,141 9,915 24,056 7,849 32,6% 18,496 Protection Family 22,747 15,169 37,916 10,468 27,6% 26,303 Misdemeanors 76,799 97,284 174,083 90,691 52,0% 73,587 TOTAL 1,665,936 1,301,263 2,967,199 1,091,442 36,6% 1,682,971 Source: Judicial Branch. Table 18 Main Indicators of Judicial Branch Performance 86 Indicator/ Year 2006 2005 2004 2003 Resolution Rate 0.91 0.95 0.86 0.78 Congestion 1.25 1.23 3.96 5.99 Judicial Quality of Confirmed Sentences 0.69 0.70 0.65 0.6 Source: Judicial Branch Website.
Report on Judicial Systems in the Americas 2006-2007 397 The agency is composed of the National Public Prosecutor s Office, Supreme Prosecutors, Superior Prosecutors, Provincial Prosecutors, Adjunct Prosecutors and prosecutorial boards. 93 The Statutes of the PPO assign the following areas to Supreme Prosecutors; criminal, civil and contentious-administrative. Following the publication of this norm, in order to appoint provincial prosecutors, a change was implemented and their title was changed to Specialized Provincial Prosecutors for the criminal or civil ambit. In some areas of the country there are provincial or superior offices that specialize in terrorism, drug-trafficking, 94 corruption, 95 and crime prevention. 3.1.1. National Prosecutor The National Prosecutor is the highest authority of the PPO and is responsible for: Presenting cases of unconstitutionality before the Constitutional Court Prosecuting civil and criminal actions against high-ranking officials as per the Political Constitution, following an accusatory resolution issued by Congress, before the appropriate Supreme Court chamber 96 Bringing charges before the Judicial Branch in cases in which there is a suspicion of illegal acquisition of wealth by public officials and servants Exercising the right to Legislative Initiative as set out in the Constitution 97 He or she is also responsible for the budgetary proposal and presides over the Board of Supreme Prosecutors. The National Prosecutor also appoints temporary prosecutors and generates a list of vacant judgeships at the request of the National Magistrates Council. 98 The National PPO can appoint a team for complex cases and name Specialized Prosecutors for certain crimes with the approval of the Board of Supreme Prosecutors. 99 The National Prosecutor is elected by the Board of Supreme Prosecutors for a three-year period, which can be renewed for an additional two years. He or she must be over the age of 50, have served as a Superior Court prosecutor for no fewer than 10 years, and have served for no fewer than 20 years as a practicing attorney or law professor. 3.1.2. Supreme Prosecutors Supreme Prosecutors deal with issues that fall under their jurisdiction depending on their specialty. In the criminal area they lodge sentence appeals before the Plenary of the Court; decide on the annulment of proceedings for a criminal case in which procedural irregularities have taken place that prejudice the defense rights of the accused, or the person has been sentenced in absence, or reviving an expired case, or incurring in some other grave infringement of procedural law; and request that the Supreme Court Chief Justice initiate a disciplinary process against a judge or members of the court who have taken part in the criminal case in which procedural errors have been committed. Additionally, the Supreme Prosecutor may issue a report prior to sentencing in criminal cases in which: the accused has been imprisoned for more than 10 years; the case involves drug trafficking offences, terrorism or genocide; for crimes deemed political or social either in the sentence issued or charges laid; for crimes committed through the press, radio, television or any other public media service, as well as for crimes involving the suspension, closure or restriction of free circulation of any means of expression. In civil matters, the Supreme Prosecutor must issue a report prior to judgment in cases of: annulment or viability of annulment in marriages, separation or divorce proceedings, when the rights of minors and disabled persons are being decided, and those of a spouse who has no personal property and the defense of the marriage contract; in cases where minors or disabled persons have moral or economic rights or interests; in cases where one of the parties is absent; and in cases where a sentence has been issued in a foreign court, among others. Supreme Prosecutors in contentiousadministrative cases must issue a report before the final judgment is issued. Candidates for this position must be Peruvian citizens from birth, in full exercise of their civic rights, be over the age of 50, have been a prosecutor or member of a higher court for no less than 10 years, be an active attorney, or university law academic for no less than 20 years, and be of renowned good character. 100 In 2006, the Public Prosecutor s Office had seven Supreme Prosecutors and 13 Adjunct Supreme Prosecutors In 2003 there were six and 11 such prosecutors, respectively. 3.1.3. Superior Prosecutors Superior prosecutors are headed by a Superior Prosecutor Deacon in each judicial district. The
398 Peru post is given to the longest serving superior prosecutor of each district. Such prosecutors preside over the District Judicial Council, convene and preside over the Board of Prosecutors before a Higher Court, and act as substitutes for such courts in those cases where there is no quorum or its members are unable to meet. The superior prosecutor in criminal courts issues reports prior to the final judgment regarding matters of judicial competence. These include: challenges or ineligibility of specialized judges and members of superior courts; case build up and reduction; pre-judicial and exceptional queries against a criminal case, and those cases where the victim, family members or legal representative have formed a civil party, among others. Following the preliminary investigation, the superior prosecutor can request its extension, if he or she deems that the process is incomplete or defective; or they may request temporary filing, in cases where the culprit has not been identified, or the defendant s responsibility has not been proven, among other reasons. 101 The role of superior prosecutors in civil cases is as follows: to issue a report prior to the judgment concluding the trial stage using procedures referred to in Article 85 of the Public Prosecutor s Office Statutes, in cases involving challenges to a proposed marriage, in procedures whose aim is to protect public morals and proper conduct, in procedures to resolve conflicts of authority and trade disputes, in cases involving third parties in conflict with the owners of a publicly registered corporation, in cases of coresponsibility as established by law; and in cases of bankruptcy reinstatement, among others. The family law superior prosecutor must issue a report prior to judgment regarding annulment or viability of annulment in marriages, separation or divorce proceedings, when the rights of minors and disabled persons are being decided, and those of a spouse who has no personal property and the defense of the marriage contract. In 2006, there were also superior prosecutors specialized in areas such as crimes against humanity and human rights, anti-corruption, and contentious-administrative matters. In 2006, there were 139 superior prosecutors throughout the country, of which 33.8% (47) worked in the criminal area; 40.3% (56) worked in mixed criminal and civil cases; 15.8% (22) in civil matters; 2.87% (4) dealt with cases of crimes against humanity and human rights violations; 4.3% (6) in anti-corruption matters; 0.72% (1) family matters; and 2.15% (3) contentiousadministrative matters. In 2006, the PPO had 146 superior prosecutors and 147 adjunct superior prosecutors, showing an increase of 30 and 32 such prosecutors, respectively, over 2003. To be a superior prosecutor a person must be Peruvian from birth, in full exercise of their civic rights, be of good character and older than 35 years of age, and have been a prosecutor or first instance judge for at least seven years, or a working attorney or university law professor for no less than 10 years. 3.1.4. Provincial Prosecutors As with the supreme and superior prosecutors, the longest serving prosecutor of a given province is responsible for convening and presiding over the corresponding Board of Prosecutors, or of acting in its place, if it has not been possible to establish or convene such a board. The work of provincial prosecutors dealing with criminal cases includes their intervention when a suspect has been arrested, deciding whether an accusation has merits or not, opening a police investigation to gather evidence, and presenting it to a judge. The provincial prosecutor for civil matters may take part in appeals cases and provide pertinent evidence, as well as in annulment, separation and divorce hearings, and issue a report prior to sentencing in other cases referred to in Article 89 of the Public Prosecutor s Office Statutes. Provincial prosecutors for family matters may: contest appeals and provide pertinent evidence in hearings for marriage annulment, separation and divorce; and act in accordance with the Minors and Adolescence Code in cases of intrafamily violence and take part in processes regarding the state and capacity of individuals. In 2006, there were 692 provincial prosecutors, of which 231 worked in the criminal area, 67 in family matters, and 47 in civil and family matters. There were 264 mixed prosecutors, 42 in crime prevention, six in supra-provincial matters, six in smuggling offenses, six in anti-corruption matters, 18 in drug trafficking cases, one for crimes against public safety, one specialized in human rights violations, two in tourism matters, and one for tax offenses. The requirements for provincial prosecutor include: being a Peruvian national from birth, able to fully exercise civic rights, be of good character, be over the age of 28 and have been an adjunct provincial prosecutor or Justice of the Peace.
Report on Judicial Systems in the Americas 2006-2007 399 In 2006, the Public Prosecutor s Office had 713 provincial prosecutors and 963 adjunct provincial prosecutors. In 2003 there were 574 and 727 such prosecutors, respectively. Table 19 Prosecutors According to the Public Prosecutor s Office Organizational Structure, 2006 Prosecutors Number National Prosecutor 1 Supreme Prosecutors 7 Adjunct Supreme Prosecutors 13 Superior Prosecutor 146 Adjunct Superior Prosecutor 147 Provincial Prosecutor 713 Adjunct Superior Prosecutor 963 TOTAL 1990 Source: Public Prosecutor s Office. 3.2. Government and Administration 3.2.1. Board of Supreme Prosecutors The Board of Supreme Prosecutors responds to queries from the Executive Branch regarding the fulfillment of institutional work as requested by the National Prosecutor, and approves the budget proposal. Additionally, as requested by the National Prosecutor, the Board approves the number of superior and provincial prosecutors per area for each judicial district. The role of this board is as follows: to assign one of its members to visit one or more district prosecutor s offices to investigate the conduct of prosecutors or any accusations of irregularities; to designate a replacement for a prosecutor who has been barred from a case, when no adjunct prosecutor is available; to grant medical, bereavement or other justifiable leave, following substantiation by the corresponding superior, titular or adjunct prosecutor; and to approve the nomination of administrative staff proposed by the Superior Prosecutor Deacon. 3.2.3. Board of Provincial Prosecutors The Board of Provincial Prosecutors is responsible for designating a replacement for any prosecutor barred from a given case, when no adjunct prosecutor is available; grant medical, bereavement or other justifiable leave, following substantiation by provincial prosecutors and their adjuncts, among other tasks. Other important bodies of the Public Prosecutor s Office include the Guidance Council, the Cabinet of Advisors, and the National Prosecutor s Coordination Office. 102 3.3. Other Public Prosecutor s Office Agencies 3.3.1. Institutional Supervisory Bodies Public Prosecutor s Office supervisory bodies include the Internal Supervisory Office (Fiscalía de Control Interno) and the Institutional Supervisory Body (Órgano de Control Institucional or OCI). 103 The OCI forms part of the National Supervisory System (Sistema Nacional de Control) which is responsible for internal government supervision, the aim of which is to promote the proper and transparent administration of financial resources and assets belonging to the Public Prosecutor s Office, safeguarding the legality and efficiency of its actions and operations, and the attainment of results via the implementation of supervisory actions and activities that support institutional objectives. The body is headed by the Central Manager (Gerente Central). 104 At the organizational level, the OCI is located at the hierarchical head of the body as regards exercising administrative control. Consequently, the Central Manager, together with fulfilling his or her obligations to the Comptroller General of the Republic (Contraloría General de la República), must report directly to the National Prosecutor s Office regarding the requirements and results of supervisory actions and activities. The Central Manager of the OCI 105 is responsible for the following areas: 106 Drafting, implementing and evaluating the Annual Supervisory Plan approved by the Comptroller General; Implementing internal supervision following administrative actions and operations by the body; and Auditing the body s finance and budgets and administration according to guidelines issued by the Comptroller General. 3.3.2. Supreme Internal Supervisory Office The PPO Supreme Internal Supervisory Office is responsible for disciplinary control and