OECD Justice Review of Peru

1. Assessment and recommendations

Abstract

This chapter outlines the main findings of the OECD assessment and presents policy recommendations to support ongoing efforts in Peru to reform and modernise its justice system. These recommendations aim to support Peru’s justice actors in drawing on the experience and good practices of OECD Member countries, along with relevant OECD and other international standards, to achieve their strategic objectives and bring justice closer to people’s needs.

1.1. Introduction

This review assesses Peru’s justice system and offers concrete recommendations to build more effective, efficient, transparent, accessible and people-centred justice in Peru. It evaluates the institutional and functional arrangements underpinning the administration of the justice system in Peru while comparing them with OECD good practices, including from Australia, Austria, Belgium, Canada, Chile, Colombia, Lithuania, Portugal, Spain, England (United Kingdom), Wales (United Kingdom) and the United States. The review also assesses justice service access and mapping issues in Peru using a people-centred approach and illustrations from legal needs analysis in two regions, Lima and San Martín.

The review finds that access to justice in Peru has historically been centred on access to courts, with a relatively limited role and corresponding resources assigned to the executive in justice policy planning, implementation, monitoring and evaluation. The conflation of “access to justice” with “access to the court system” and the relatively limited power and resources assigned to the executive to lead and co-ordinate justice policy across the justice system undermine Peru’s capacity to respond effectively to its citizens’ justice needs, regardless of who they are or where they reside in the country. This can help explain some of the current gaps, overlaps and duplications in the availability of key justice services, notably for the most vulnerable, especially in rural and remote areas.

1.2. Institutional set-up and co-ordination in the justice system

Peru has put forward a series of major justice reform plans to modernise its justice system and improve its interoperability and integrity. However, limited clarity in terms of justice institutions’ roles and functions, leadership, and co-ordination among them, have impeded the implementation of justice reforms.

The Peruvian justice system comprises many institutions whose roles and justice functions have not been clearly defined. This, together with the shortage of effective communications and co-ordination across institutions, often leads to overlaps in mandates, roles and responsibilities in justice policy design and service delivery. The implementation of the latest reform initiative (2021‑25) has displayed partial co‑ordination and fragmentation, due to limited system-wide leadership, and has unevenly impacted the modernisation of the justice system. Similarly, multiple programmes have been set up by institutions with similar or overlapping mandates, with limited clarity in the allocation of resources and gaps in monitoring and evaluation frameworks.

Moreover, the fragmented nature of the Peruvian justice system leads to a compartmented approach to law enforcement, in which the institutions work as separate entities with little co-ordination among them in the implementation of laws and policies that require their joint work. Tackling the fragmentation and the dispersed responsibility for justice services across institutions could enhance their capacity to understand and respond to people’s justice needs. This issue reflects the broader challenges associated with a fragmented yet highly centralised state, which has operated in a context of high political instability in recent years.

Furthermore, most of the justice reforms have primarily focused on the judiciary and its needs, with less attention to the out-of-court services and processes that can help access to justice. Addressing this imbalance requires boosting the capacity of MINJUSDH to lead the planning and co-ordination of justice services and reforms for a people-centred system of providing access to justice.

As a multicultural country with important and diverse Indigenous and rural populations, ordinary justice co‑exists with various levels of Indigenous, peasant and community justice. However, even though the Constitution recognises peasants’ and native communities’ right to exercise jurisdictional functions, no law regulates or further develops this right or co-ordinates the co-existence of these two justice systems.

In addition, the implementation of this right can be uncertain and vary in each region of Peru depending on the presence, power and perceived legitimacy of these groups in terms of problem solving and providing intercultural access to justice. This can make it difficult to separate the roles and functions of both institutions and services, avoid overlap of functions, and guarantee intercultural justice and the respect of both justice systems across the country.

Moreover, in Peru, a clear and integrated people-centred approach to justice has yet to be applied, including in the mandates of core justice institutions. As such, improving clarity in the role and justice functions and services could increase users’ knowledge regarding justice services and pathways, so they know where to go to prevent legal issues and seek resolution. Moreover, it could further improve the efficiency in resource allocation and the delivery of people-centred justice services.

Finally, administrative justice as an area of the law is still underdeveloped in Peru, often overshadowed by the constitutional justice system. This can be illustrated by the fact that citizens prefer the constitutional amparo rather than using administrative justice channels to protect their rights. This imbalance restricts to effectively oversee administrative actions by public authorities, thereby limiting the protection of individual rights against government action. There is also scope to expand the scope of review within the administrative justice system to include public procurement and election-related issues, in line with practices in many OECD Members.

1.2.1. Recommendations

In light of the above, the following recommendations are presented for consideration by Peru (presented in greater detail at the end of Chapter 3): 

Key recommendations  

• Take measures to fully implement Peru's legal framework on safeguarding the Constitutional Separation of Powers by clarifying procedures and circumstances under which the system of checks and balances is applied. This should include specifying the roles and powers of each branch of government in overseeing and checking the others.

• Take measures to empower the executive branch to lead and co-ordinate the design and implementation of system-wide justice policy reforms, through a people-centred approach.

• Take steps for designing and implementing co-ordination mechanisms that focus on responding to justice needs with a whole-of-government approach, including clarifying roles and responsibilities of justice institutions and establishing relevant processes and protocols.

Medium/long-term recommendations

• Enhance mutual knowledge and co-operation between formal and Indigenous and intercultural justice; clearly define in law, in full consultation with Indigenous groups, the juridical frontier separating Indigenous and formal justice; and strengthen co-ordination capacity to promote access to formal, Indigenous and intercultural justice by all Peruvians, regardless of who they are or where they reside in the country.

• Enhancing accountability of the public sector by developing the administrative justice system. All administrative acts should be subject to judicial review, including public procurement and electoral administration. The court should be able to fully redress any violation of the law, including lack of competence, procedural unfairness, and abuse of power. Only laws adopted by parliament should fall outside the purview of the administrative justice and fall under the jurisdiction of the Constitutional Court.

1.3. Governance and management for a transparent and independent judicial system in Peru

While Peru has been taking steps to establish a comprehensive institutional framework to ensure sound governance in the justice sector, the fragmented institutionalisation of its justice system hinders an already complex management system with blurred lines of responsibility. This tends to generate overlap and duplication, and conflicts of authority and competence in the governance of the judicial system, while limiting accountability.

Mechanisms governing budget allocation to the justice sector, including co-ordination and negotiation arrangements, appear restricted. The judiciary engages in limited system-wide, medium-term strategic planning, including budgetary and financial planning. It has yet to develop monitoring and evaluation frameworks that can be used to demonstrate to itself, the Ministry of Economy and Finance (MEF) and the positive impact of its spending on legal and judicial outcomes for people.

Most importantly, there is a strong need to strengthen the existing institutional, legal and operational framework safeguarding the independence of judges. The most salient challenges are judges’ ratification, performance appraisal schemes, the high number of judges under temporary employment and the possibility of the Ombuds Office interfering in individual judicial proceedings by direct injunctions.

The legal ambiguity and lack of precision surrounding the application of sanctions against judges allow for different interpretations of and criteria for what is sanctionable and how. The equal treatment of judges before the law is thus not guaranteed. Compared with many OECD Member countries’ disciplinary bodies, Peru's various bodies with disciplinary roles, coupled with the vagueness of the law in this area, can undermine equal treatment before the law, lead to biased decisions concerning a judge’s career and jeopardise the independence of judges.

1.3.1. Recommendations

In light of the above, the following recommendations are presented for consideration by Peru (presented in greater detail at the end of Chapters 3 and 4):

Key recommendations

• Take measures to ensure the constitutional guarantee of judicial independence, including the overhaul of the performance appraisal, ratification, and evaluation of sitting judges to avoid risks to their independence and impartiality.

• Continue to implement measures to reduce judges’ and prosecutors’ temporality (provisional and supernumerary), with a view to safeguarding their impartiality.

• Take measures to ensure fair, impartial, and merit-based treatment of judges regarding their selection, lifelong training, and sanctions, including by overhauling the selection system and strengthening pre-entry training of judges and prosecutors.

• Further clarify the roles and functions of the highest bodies of the judiciary to avoid overlap and duplication as well as conflicts of authorities and competences. This is of particular importance in the case of investigation and sanction of magistrates.

• Take steps to strengthen judiciary budgetary management and performance, including system-wide strategic planning, developing performance indicators, and designing and using monitoring and evaluation frameworks respecting judicial independence and the judiciary’s needs to carry out its constitutional mandate successfully.

1.4. Towards an efficient and seamless justice system

Although significant reforms have been undertaken over the past years to improve the efficiency of the judicial system, court congestion remains significant in Peru compared to OECD averages and practices. This is reflected in slow clearance rates and case backlogs, the limitations and dysfunctions in alternative dispute resolution (ADR) mechanisms and limitations in enhancing an interoperable digital justice system across the country.

In addition, judicial resources, such as judges and budgets, could be better allocated across court districts through the implementation of better court and case management strategies and by improving the implementation and uptake of the e-filing system (Expediente Judicial Electrónico), respecting the principles of transparency, inclusiveness, accountability and accessibility. The efficient use of statistics and a data-based approach to case management and monitoring, when accompanied by the right information and communication technology (ICT) tools, infrastructure and training, are critical to clearing backlogs, improving case clearance rates and disposition times and enhancing the quality of justice delivery by improving courts’ performance.

Popular arbitration could also be more widely used to alleviate court congestion. However, the use of ADR mechanisms is still underused in Peru. ADR mechanisms could thus be better promoted, implemented and evaluated, adapting them to people’s needs. Further data and stronger information systems are also needed to measure the performance and impact of ADR mechanisms as a means to improve their efficiency.

1.4.1. Recommendations

In light of the above, the following recommendations are presented for consideration by Peru (presented in greater detail at the end of Chapter 5).

Key recommendations  

• Improve the design, trustworthiness, and practical use of alternative dispute resolution (ADR) mechanisms by implementing a clear and detailed legal and regulatory framework for all ADR mechanisms and improving data collection with a view to measuring their implementation and impact.

• Take measures to develop comprehensive decongestion measures and new management structures to improve the efficiency of the courts, including digital tools. Improve the production and use of statistics and a data-based approach by implementing comprehensive data collection on the length of court proceedings and suggest recommendations about their application at all levels of jurisdiction in Peru.

• Implement mechanisms to enhance/bolster the collection of data with a view of designing and implementing a comprehensive, inclusive and integrated policy on access to justice.

Medium/long-term recommendations

• Take steps to establish a permanent, fully integrated system of justice digital interoperability that allows for the exchange of justice data and the processing of judicial processes in a comprehensive and seamless manner at the national level.

• Implement an integrated, co-ordinated national digital strategy for the justice system that enhances the use of digital tools to improve the efficiency and effectiveness of justice delivery. While doing so, define clear responsibilities, leadership, and co‑operation mechanisms to ensure the strategy’s implementation, monitoring and evaluation.

1.5. Towards a people-centred justice system in Peru

Peru has adopted a robust normative system to enhance vulnerable populations’ access to justice. Indeed, the country has taken steps to enhance the number and types of justice services available to its citizens across the country, including expanding the presence of courts and diversifying judicial services; creating specialised courts and judicial mechanisms to improve an intercultural approach; and increasing the availability and presence of public defence and legal aid services to assist individuals who cannot afford legal representation.

However, the accessibility of these services, as well as their ability to respond to the needs of vulnerable populations and groups (women, including victims or potential victims of violence; Indigenous and rural people; and the LGBTQI community), can vary in practice as they face specific limitations when accessing each available service. These include regional disparities in the availability of justice services – with more remote areas facing challenges in accessing adequate legal representation and support. Indeed, Peruvian justice institutions face considerable challenges in guaranteeing access to justice to all people, vulnerable populations being more prone to experiencing them, as the main legal barriers they face are related to remoteness, system complexity, language barriers, and cost. These barriers could be better identified to improve justice services and to guarantee access for specific populations.

1.5.1. Recommendations

In light of the above, the following recommendations are presented for consideration by Peru (presented in greater detail at the end of Chapter 6):

Key recommendations  

• Implement measures including assigning increased human and financial resources to overcome remaining geographical and system complexities, cultural, language, and financial barriers to access justice services.

• Strengthen public defence and legal aid services to ensure access to justice for all individuals and vulnerabilities. Strengthening the role of relevant institutions and establish clear justice pathways to facilitate people's access to justice services.