OECD Justice Review of Peru

2. The rule of law and equal access to justice in Peru

Abstract

This chapter analyses the importance of the rule of law and equal access to justice in Peru by identifying the linkages between the rule of law, access to justice, trust in public institutions and good governance, comparing Peru with OECD Member countries. It then highlights Peru’s main justice reform initiatives and analyses how the protection of fundamental rights and access to justice is guaranteed in the country. Finally, it provides an overview of the methodology and structure of this review.

2.1. Introduction

This chapter briefly describes the rule of law and how most modern democracies within and beyond the OECD have adopted this principle as the main guarantor of people’s equal treatment under the law and equal access to justice. It identifies key linkages between the rule of law, access to justice, trust in public institutions, and good governance and how levels of perceived corruption in a country affect citizen trust in public institutions, including those that form part of the justice system, and undermine a healthy and attractive business environment.

This chapter also presents the development of a people-centred approach, placing individuals and their needs and experiences at the centre when designing, delivering, implementing and evaluating public policies and services within the justice system. It then analyses recent justice reform policies and how fundamental rights and access to justice are guaranteed in Peru – including the progressive provision of Indigenous, women and environmental rights – and assesses how Peru’s institutional arrangements protect these rights, while comparing them with OECD country experiences.

Finally, it presents an overview of the methodology and structure of this review, which comprises five chapters that examine the structure, roles and responsibilities; procedures and practices; governance, management and performance; digitalisation and effectiveness of the justice system of Peru; as well as the development and implementation of a justice system driven by people’s needs.

2.2. The rule of law, public trust and good governance

The rule of law constitutes one of the core principles that define the like-mindedness of OECD Members. It reflects a foundational building block adopted by modern democracies. This values-based principle posits that everyone is equal under the law, with the same rules, procedures and principles applying to all people and institutions. Applying this principle underpins good governance: it finds expression in laws and regulations that guarantee people fair treatment under the law and equal access to justice.

The rule of law promotes the practice of democracy and supports inclusive growth by ensuring that those who are elected remain accountable to the people through a functional justice system:

• Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. Judges must be free from any influence or pressure that can affect their impartiality and capacity to act freely as essential cogs in a people-centred justice system that protects all people’s rights, including, most importantly, the rights of the most vulnerable (OECD, 2020[1]).

• The consistent application of the rule of law constitutes the implementation mechanism to uphold and protect human rights, as it requires that legal processes, institutions, and norms be predictable and consistent with human rights (UN Security Council, 2004[2]). Human rights, the rule of law and democracy are interlinked and mutually reinforcing (UNGA, 2012[3]).

• The rule of law and effective justice institutions have been recognised as key components to sustain a thriving business environment and improve long-term economic and social outcomes (OECD, 2018[4]). The OECD Policy Framework for Investment suggests that when conditions for effective access to justice are not guaranteed, companies may face barriers that limit their economic activities, which can adversely affect their country’s economic growth (OECD, 2020[5]).

The United Nations (UN) Agenda 2030 Sustainable Development Goals (SDGs) calls upon governments through SDG 16 (Peace, Justice, and Strong Institutions) to enable the rule of law, provide access to justice for all and build effective, accountable and inclusive institutions at all levels. Main public governance values linked to the rule of law are described in Box 2.1.

Box 2.1. Public governance values linked to the rule of law

Integrity: The alignment of, and adherence to, shared values and ethics, principles and norms for upholding and prioritising the public interest over private interests in public sector behaviour and decision making.

Transparency: The accessibility of information and other public resources and the initiative-taking disclosure of information and data. Promoting this principle is critical to building accountability, including citizens in policy making and building trust in public institutions.

Public participation and inclusiveness: The engagement of the whole of society and the adoption by governments of specific measures to ensure the participation of all societal groups in decision-making processes. This includes the participation of marginalised groups traditionally under-represented in policy-making processes.

Accountability: Accountability frameworks ensure that the different branches of the state hold each other accountable on behalf of the people and that public officials are accountable for public services and their relationship with citizens. Accountability strengthens people’s trust in public institutions and the government.

Source: (OECD, 2020[1]), Policy Framework on Sound Public Governance: Baseline Features of Governments that Work Well, https://doi.org/10.1787/c03e01b3-en.

Effective, responsive and efficient justice institutions (see Box 2.2) are essential enablers of the rule of law and trust in justice institutions, which in turn serve as a bedrock for the successful implementation of reforms and of socio-economic development (OECD, 2020[1]). Indeed, the OECD’s work on trust in the justice system highlights that access to and satisfaction with justice services are important contributors to citizens’ trust in government. According to the OECD Survey on Drivers of Trust in Public Institutions, the perceived independence of the courts is positively associated with public trust in courts and the legal system, following the relationship between effective institutions and trust in government (OECD, 2022[6]).

Box 2.2. Parameters of effective justice systems: The 2023 EU Justice Scoreboard

The EU Justice Scoreboard is a comparative information tool that assists EU Member States in improving the effectiveness of their national justice systems by providing an annual overview of indicators for the assessment of their efficiency, quality and independence, as follows:

• Efficiency: The main indicators to monitor efficiency are the length of proceedings (average number of days needed to resolve a case), the clearance rate (number of resolved cases to the number of incoming cases) and the number of pending cases (that remain to be dealt with at the end of the year).

• Quality: Indicators include accessibility (available legal aid and court fees, promotion of alternative dispute resolution [ADR] mechanisms, arrangements to support persons at risk of discrimination and older persons, specific arrangements for victims of violence against women and domestic violence, measures to ensure a child-friendly justice system, judicial control over acts and omissions of public administration), sufficient resources (financial resources, salaries of judges and prosecutors, gender equality in the judiciary, communication with vulnerable groups), effective assessment tools (use of surveys) and digitalisation (online information about the judicial system, digital-ready procedural rules, use of digital technology, secure electronic tools for communication, online access to ongoing and closed cases, online access to court judgements).

• Independence: Perceived judicial independence (surveys of the public and companies), perceived effectiveness of investment protection by the law and courts, the appointment of Supreme Court Presidents and Prosecutors General, powers and appointment of the specialised bodies dealing with corruption, solutions adopted to ensure the protection of constitutional rights and the guarantee of the independence of lawyers.

Source: (European Union, 2023[7]), The 2023 EU Justice Scoreboard, https://commission.europa.eu/system/files/2023-06/Justice%20Scoreboard%202023_0.pdf.

In addition, access to justice is increasingly recognised as a critical dimension of inclusive growth and development and an effective means to tackle inequality. It is an important commitment under the UN 2030 Agenda, particularly an SDG related to it (SDG 16.3). People’s legal problems and needs cover every aspect of their lives and are so common that people experience them often in their everyday lives (e.g., debt, neighbourhood issues, property issues, employment). To provide equal access to justice services, the justice system should understand and address the legal and justice needs of the population. This includes knowledge of the specific legal and justice needs of distinct groups across society.

Equal access to justice is an essential component of what defines a people-centred justice system. It requires countries to recalibrate their policy and programme focus in the justice area toward ever-greater people-centred design and delivery of legal and justice services, ensuring that all people have access to high-quality, responsive, targeted, timely, and cost-effective services. This approach flows from and reinforces the concept of justice as a public service, a concept that is guiding the modernisation efforts of the justice systems in OECD Member countries. It highlights governments’ responsibility to provide and ensure full access to public services that effectively meet the expectations and needs of their people in all their diversity (OECD, 2021[8]).

Box 2.3. Access to justice and people-centred legal and justice services outcomes

Access to justice through the provision of people-centred legal and justice services has several types of measurable impacts:

• Effects on the legal and justice systems, as the diversion of cases away from courts, the prevention of court congestion, and the improvement of the allocation of existing resources, enhance the efficiency of the court process.

• The failure to deliver affordable and sustainable access to justice to citizens erodes their faith in their justice systems and trust in their democratic institutions. Improved, real access to justice will have a commensurate positive impact on improving people’s trust in their democratic institutions.

• Economic growth, including individuals’ and families’ economic growth, thanks to the provision of legal assistance that turns into investment within local communities, which increases employment, the purchase of goods and services, and associated tax revenue.

• High-level socio-economic impacts, including socio-economic inclusion through effective universal access to social benefits (e.g. social security, healthcare, unemployment, child support, tax benefits).

• Sectoral impacts or benefits in different public policy areas (e.g. health, benefits, living conditions) impact economic growth.

All these impacts help contribute to inclusive growth and to reducing inequalities.

Source: (OECD, 2019[9]), Equal Access to Justice for Inclusive Growth: Putting People at the Centre, https://doi.org/10.1787/597f5b7f-en.

OECD Member countries are advancing towards justice systems that place people’s needs at the core of the state’s institutional decision making, reform efforts and actions in the justice area. This broader and more inclusive approach is reflected in the OECD Recommendation on Access to Justice and People-Centred Justice Systems [OECD/LEGAL/0498] (Figure 2.1), which the OECD Council adopted in July 2023. The Recommendation focuses on four main pillars that underpin people-centred justice systems: designing and delivering people-centred services; governance enablers and infrastructure; people empowerment; and planning, monitoring and accountability (OECD, 2023[10]). The pillars rest on a foundation that emphasises the importance of people-centred purpose and the culture of the justice system. These elements can also provide a basis for governments, judicial branches and other justice stakeholders to develop more detailed provisions reflecting country-specific differences and different population groups' legal and justice needs.

Figure 2.1. Framework on people-centred justice

Source: (OECD, 2021[8]), OECD Framework and Good Practice Principles for People-Centred Justice, https://doi.org/10.1787/cdc3bde7-en and OECD Recommendation on Access to Justice and People-Centred Justice Systems, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0498

Evidence suggests that legal needs surveys are the best means of obtaining the most representative understanding of legal needs from the people’s perspective1. A people-centred legal and justice service design is based on understanding people’s needs and experiences to meet these needs and contribute to inclusive growth and individual and community well-being (OECD, 2021[11]). Legal needs surveys seek to identify common obstacles to accessing justice experienced by individuals and businesses and pave the way for reforms to improve access to justice. For example, several surveys carried out in a wide range of OECD Member countries have demonstrated that only a small proportion of legal problems experienced by the population are resolved through legal processes (e.g. in Australia, only 3.4% of matters are resolved through courts and tribunals, and in Canada, only 7% of people use formal court processes to solve their legal problems) (OECD, 2019[9]). This means that access to justice needs to be understood and assessed using a much broader perspective than simply focusing on access to courts.

2.3. The rule of law, trust and justice in Peru

Trust is essential for the effective functioning and legitimacy of democratic systems. Information on levels of trust in public institutions can offer valuable insights to public administrations about citizens' experiences with and assessments of policy and service delivery, including perceptions surrounding the justice system and the rule of law.

Box 2.4. Systematic planning for people-centred services

The design and delivery of efficient legal and justice policy involve systemic planning processes based on four basic questions posed and answered from the perspective of those with legal and justice needs:

• Identification and measurement of legal need: What types of legal and justice needs are experienced and by whom? What people/groups are most vulnerable and/or face the greatest barriers?

• Mapping of legal needs: Where and when are these needs experienced?

• Design of services: What works in designing services that meet these needs? What solutions/strategies/services work best for different people in different contexts?

• Delivery of services: Where to deliver services, and how should they be evaluated?

The approaches used to measure needs and formulate policies and services should be adapted and take into consideration specific populations, particularly those of vulnerable populations and those living in disadvantaged areas.

Source: (OECD, 2019[9]; OECD, 2021[8]).

However, evidence suggests that trust in public institutions is declining in Peru, in line with regional and global trends. According to regional studies, less than half of the population reported trusting their government (Latinobarómetro, 2021[12]), with only 18% of the population reporting trusting the judiciary (Figure 2.2). Similar trends are reported by other international indexes, such as the Rule of Law Index (World Justice Project, 2022[13]). The OECD's analytical and policy framework to understand and measure the key drivers of trust in public institutions suggests that governments can strengthen the reliability of public institutions and their responsiveness to people’s needs and expectations, as well as put in place political processes and public policies that follow the principles of openness, integrity and fairness (Brezzi et al., 2021[14]).

The notion of fairness as a driver of trust is particularly relevant in the context of the rule of law and justice, as the concepts are intrinsically linked. Like many other countries in Latin America, most Peruvians (more than 80%) (Figure 2.3) do not feel equal under the law (Latinobarómetro, 2021[12]). Moreover, for close to 90% of the population in Peru, equitable access to justice for all, notably for vulnerable populations, remains one of the main challenges facing the justice system (Latinobarómetro, 2021[12]). These barriers reflect the country’s socio-economic inequalities, as 72% of Peruvians listed income, geography and gender as the main factors generating inequalities (OXFAM and IEP, 2022[15]) (see Chapter 6).

The notion of equality under the law is also tightly linked to the perception of integrity in the country’s public sector, another public governance driver of trust within the OECD framework. While Peru is taking steps to strengthen integrity in the public sector, the corruption perception rate in Peru is historically high (OECD, 2023[16]). According to the Corruption Perception Index (where zero means highly corrupt), Peru scored 33 out of 100, descending three points from 2022 and its lowest score since 2012 (Transparency International, 2023[17]). When asked about the justice system, half of Peruvians perceive judges and magistrates as being corrupt (Latinobarómetro, 2021[12]), which could have been exacerbated by recent cases of corruption involving judges and prosecutors. Indeed, independence from undue influence remains a significant challenge in Peru’s criminal justice system, mainly due to the use of provisional prosecutors and judges (OECD, 2017_[17]). This issue will be examined in Chapter 4.

Figure 2.2. Peru’s citizens’ trust in the Judicial Power is one of the lowest in Latin America

Citizen trust by country in Latin America, percentage, 2023

Note: This figure presents the percentage of citizens in Latin American countries who trust their justice system when asked: Please look at this card and tell me, for each of the groups, institutions, or people on the list, how much trust do you have in them?

Source: Latinobarometro (2023), Online Analysis: Confidence in the Judiciary, https://www.latinobarometro.org/latOnline.jsp, accessed 13 December 2023.

Figure 2.3. Peruvians do not feel equal before the law

Citizens’ feeling of inequality before the law by country in Latin America, percentage, 2020

Note: This figure presents the percentage of citizens in Latin American countries who do not feel equal before the law when responding to the following question: Would you say that national citizens are equal before the law?

Source: (Latinobarómetro, 2021[12]).

Corruption is one of the most corrosive issues affecting social peace as it diverts public capacity to pursue private interests, harnessing public resources for private gain. In so doing, it widens economic and social inequalities, breeds political polarisation, reduces trust in institutions and undermines people’s well-being (OECD, 2020[1]). Indeed, it is estimated that in Peru, corruption and functional misconduct in the public administration represents 13.6% of the executed national budget (approximately USD 6.3 billion (Contraloria de la Republica de Peru, 2022[18]).

Despite Peru’s socio-economic development and its macroeconomic stability and growth in recent years, firms consider corruption as one of the most important obstacles to doing business in Peru and identify courts as a major constraint for business (OECD, 2017[19]; 2023[16]).

Corruption feeds citizens’ perceptions that the public sector, including the justice system, is not serving the public interest properly, especially those citizens who need public services the most. In 2022, 86% of Peruvians believed that corruption had a negative impact on their daily lives, 59% that it is detrimental to the family economy and 58% that it results in lower economic growth (IPSOS and Proetica, 2022[20]).

Peruvian authorities recognise these challenges and are taking steps to implement a range of anti-corruption measures. These include integrating an anti-corruption unit (the Public Integrity Secretariat) within the Presidency of the Council of Ministries, applying an electoral reform to strengthen internal party accountability mechanisms, and the systematisation of public asset and interest declarations of politicians and public servants. In addition, these include the strengthening of the national control system and key efforts to improve corruption enforcement levels since 2017, particularly with the Lava Jato Special Team and the prosecution of many Peruvian politicians and high-level officials (OECD, 2021[21]; 2023[16]; 2023[22]). Peru has also articulated a policy objective to strengthen anti-corruption policies and disciplinary control in the 2021-2025 Public Policy for the Reform of the Justice System (see Box 2.11) and in the reform of the human resource management of the judiciary (see Chapter 4).

In Peru, for close to 90% of the population, equitable access to justice for all, notably for vulnerable populations, remains one of the main challenges facing the justice system (Latinobarómetro, 2021[12]). These barriers reflect the country’s socio-economic inequalities, as 72% of Peruvians listed income, geography and gender as the main factors generating inequalities (OXFAM and IEP, 2022[15]) (see Chapter 6).

The above-mentioned indicators have been further impacted by the coronavirus (COVID‑19) pandemic as the crisis heightened pre-existing inequalities and a corresponding sense of vulnerability across population groups. The pandemic also prompted governments to rethink the state's role, assess their responsiveness, agility and digital resilience, and compelled them to develop digital solutions to ensure the continuity of public services across the country (UN DESA, 2022[23]). These issues are examined in greater depth in Chapter 5.

2.4. The protection of fundamental rights in Peru

The rule of law reflects a multidimensional concept encompassing diverse elements, including the protection and effective enforcement of fundamental rights and the adherence to and respect for human rights established under international law. By adhering to and ratifying international treaties, countries undertake obligations and duties under international law to respect, protect and fulfil human rights. Fundamental rights express the concept of human rights within a specific constitutional context. The Constitution of Peru recognises and guarantees the fundamental rights of all Peruvians (see Box 2.5).

Box 2.5. The Constitution of Peru

The Constitution of Peru recognises and guarantees the fundamental social, economic and political rights of people in Chapters I, II and III.

• Chapter I of Title I recognises the fundamental rights of people. It includes the rights to life, equality before the law, freedom of conscience and religion, freedom of expression, honour and reputation, freedom of movement, peaceful assembly, one’s ethnic and cultural identity, nationality, and a balanced and appropriate environment, among others.

• Chapter II of Title I recognises the social and economic rights of people. It includes the rights to work, pension, health, education and property, among others.

• Chapter III lists the political rights and duties. It includes the right to vote, request political asylum, extradition, and participate in political life. Chapter III also regulates the use of a referendum. Articles 2(24) and 139 regulate the rights to due process and effective judicial protection. These are separated into six distinct categories: rights of dignity and personal freedom; freedoms of thought and intimacy; rights to political participation; economic rights; social rights; and procedural rights.

Source: Peru’s Constitution from 1993.

The Constitution of Peru states that ratified treaties are part of national law, including the Universal Declaration of Human Rights (art. 55). The State of Peru has, therefore, the duty and obligation to protect these rights and implement legislation and other necessary measures that give effect to this obligation. The Constitution of Peru also grants the right to appeal to international courts or bodies to any person who considers that his or her rights under the Constitution have been violated once domestic legal proceedings have been exhausted (art. 205).

In Peru, seven out of ten people believe that the degree to which their human rights are protected is either limited (55% of respondents) or non-existent (17%). In addition, 62% of respondents believe this situation will not improve in future years. The population groups that are perceived as facing the most discrimination include the LGBTQI communities (see Chapter 6) and people living with HIV. Regarding the role of the state in protecting human rights, 46% of respondents consider that the rights to justice and social security are the least likely to be protected by the state, while 53% of respondents identified corruption as the problem preventing respect for human rights (IPOS, 2019[24]).

2.4.1. Emerging rights and constitutional provisions in Peru

OECD Members have pursued successive approaches to constitutionalise rights beyond fundamental human rights to address critical issues arising from changing societal attitudes, including the respect for diversity and difference, both natural and cultural (OECD, 2022[6]). These emerging or “new” rights and their corresponding constitutional provisions include the rights of women and gender equality, the rights of children and young people, reproductive and family rights, rights protecting gender diversity and sexual orientation, environmental rights, Indigenous rights, and rights promoting citizens’ participation in the life of the country, among others. Some resulting constitutional protections tend to be general and broad, while others are concrete and more detailed (Box 2.6). It is important to note that there is no single approach in OECD Member countries on which of these rights are to be included in a constitution and how. The decision as to which rights to include in the Constitution and how they should be structured should give due consideration to the context, the values and beliefs of the nation, the interconnectedness of the rights and the nations’ other goals and priorities (OECD, 2022[6]).

Box 2.6. Provisions in selected OECD Members’ constitutions

Indigenous rights

The Constitution of Mexico recognises specific protections for Indigenous peoples, including their right to self-determination, self-government and autonomy (art. 2). Regarding jurisdictional functions, it establishes that they can apply their own legal systems to regulate and solve their internal conflicts, in accordance with the Constitution and respecting fundamental and human rights and the dignity and safety of women (art. 2).

Colombia recognises and protects the ethnic and cultural diversity of the nation (art. 7); recognises ethnic groups’ or Indigenous people’s own languages and dialects as official in their territories (art. 10); establishes their lands as inalienable, imprescriptible and not subject to seizure (art. 63); and establishes that Indigenous peoples may exercise their jurisdictional functions within their territorial jurisdiction in accordance with their own laws as long as these are not contrary to the Constitution and national laws (art. 246).

Rights of women and gender equality

The Constitution of Portugal establishes that a “fundamental task of the state” is to promote equality between men and women (art. 9). The Constitution of France states in its preamble that “the law guarantees women equal rights of those of men in all spheres” and that “statutes shall promote access by people to elective offices” (art. 1). The Constitutions of Colombia, Finland, Germany and Switzerland have an explicit declaration that people are equal. The Constitution of Colombia establishes that people are equal; that women cannot be subject to discrimination and, that during pregnancy and after giving birth, they would have special assistance and protection from the state (art. 43); and that state authorities “will guarantee the adequate and effective participation of women in decision-making ranks of the public administration” (art. 40).

Rights to sexual orientation and gender identity

The Constitutions of Bolivia, Ecuador and the United Kingdom give constitutional rights to people regardless of their sexual orientation and gender identity. Bolivia’s Constitution specifies that “the State prohibits and punishes all forms of discrimination based on […] sexual orientation, gender identity” (art. 14). The Constitutions of Mexico, Portugal and Sweden guarantee equality or prohibit discrimination on the basis of sexual orientation. Portugal establishes that no one may be deprived of any right for reasons of sexual orientation (art. 13).

Environmental rights

In Portugal, the Constitution establishes that “everyone shall possess the right to a healthy and ecologically balanced human living environment and the duty to defend it” (art. 66[1]). Mexico states that any person has the right to a healthy environment and that environmental damage and deterioration will generate liability for whoever provokes them (art. 4). The Constitutions of Colombia and Mexico allow environmental rights to be enforced through streamlined individual claims (tutela or amparo). In Colombia, these can also be enforced through collective claims (such as acción popular).

Source: (OECD, 2022[6]).

In the case of Peru, the Constitution does not explicitly include some of the aforementioned provisions; instead, it presents broad principles and goals that are to be protected:

• Indigenous rights: The Peruvian Constitution recognises some rights of Indigenous communities, referred to as rural and native communities, including the fundamental right of the person to their ethnic and cultural identity (art. 2[19]); their legal existence and the autonomy in their community organisation along with the right to use and dispose of their lands freely (art. 89); native languages as official languages where they predominate (art. 48); and the right to exercise jurisdictional functions in accordance with common law and the Constitution (art. 149).

• Women’s rights: The Constitution includes one limited and short provision on the right to equality before the law and the prohibition of “sex-based” and “any other kind” of discrimination (art. 2[2]), but it does not include gender-specific provisions that promote gender equality. It also does not include specific articles that specifically recognise or protect women’s rights in different spheres. On women’s political participation, one provision promotes “gender representation” in regional and municipal councils by implementing quotas through law (art. 191).

• LGBTQI rights: The Constitution of Peru guarantees equality before the law and prohibits discrimination based on sex (art. 2[2]) but does not specifically guarantee equality or non-discrimination based on sexual orientation or gender identity, limiting the protection of these rights and advancing equality in practice.

• Environmental rights: The Constitution includes a general environmental right provision that identifies a fundamental right to a balanced and appropriate environment (art. 2[22]) to be enforced through contentious administrative, criminal, and civil procedures and other constitutional guarantees (art. 200), through the amparo procedures enabling the protection of fundamental rights2 (Chapter 3).

In light of the broad and therefore implicit approach to protecting emerging or “new” rights in Peru’s Constitution, specific ministries were created over time to ensure that these emerging fundamental rights are respected and given effect (e.g. the Ministry of Women and Vulnerable Populations was created in 1996 and the Ministry of the Environment in 2008). In addition, the judiciary and the Ombuds Office (Defensoría del Pueblo) have established specialised commissions and offices and adopted laws, policies, and initiatives to protect these rights within their mandate and functions. By doing so, they have also strengthened vulnerable populations' access to justice, notably by adapting their work and services to new international standards, as seen later in this review.

Ministries have adopted human rights policies with different social approaches, most of which have a multisectoral approach and long-term planning until 2030.

2.4.2. Institutional arrangements for the protection of new fundamental rights

Both domestic and international bodies oversee the protection of fundamental rights in Peru. The fundamental responsibility to protect, respect and fulfil fundamental rights rests with the state, as detailed in the Universal Declaration of Human Rights, with key state institutions playing a predominant role in giving effect to this obligation in Peru. Some of these include the Constitutional Court, the judiciary, the Ombuds Office, the Ministry of Justice and Human Rights and the Congress Commission of Justice and Human Rights. In addition, since 1990, the Inter-American Court of Human Rights, as a regional mechanism, has become increasingly active in protecting and promoting human rights in Peru.

The Constitutional Court and the judiciary

Fundamental rights are justiciable rights and are therefore legally enforceable, including against the state. Elected representatives and public officials can go to court if they fail to meet their legal or constitutional obligations to protect and promote such rights. The Constitutional Court guarantees the protection of these rights and safeguards the supremacy of the Constitution over conflicting laws and governmental rules and regulations (art. 200). Thus, the responsibility for interpreting the Constitution and settling constitutional disputes lies with the Constitutional Court. The Constitutional Court protects the Constitution and interprets the constitutionality of laws, rules and regulations. It is also the constitutional body in charge of defending fundamental rights (Constitution, art. 201). As the final court of cassation, it defends the judiciary's integrity by settling appeals of cases passed on judicially by a constitutional or mixed judge, who hears the case in the first and second instance. Chapters 3 and 4 examine these protection mechanisms in greater detail.

The Ombuds Office

The Ombuds Office (Defensoría del Pueblo) is an autonomous institution responsible for defending people’s constitutional rights, notably by supervising the state’s administrative duties and the provisions of public services to citizens (Constitution, arts. 161-162). In so doing, this institution carries out several initiatives and functions, such as receiving complaints from citizens, providing legal or institutional support; and acting in emblematic cases where fundamental rights are being compromised through strategic litigation and acting as an amicus curiae (a professional or organisation that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question) and by filing constitutional claims (Organic Law of the Ombuds Office). For example, the Ombuds Office has filed protection claims (recurso de amparo) against government institutions related to the rights of Indigenous communities, the right to a dignified death and the right to a timely legal/judicial process (see Chapter 3).

The Ministry of Justice and Human Rights

As part of the executive, the Ministry of Justice and Human Rights (Ministerio de Justicia y Derechos Humanos, MINJUSDH) has jurisdiction over human rights issues and is responsible for creating, executing and supervising national policies on this matter (arts. 4 and 6 of the Law of Organisation and Functions of the MINJUSDH) (see Chapter 3). The General Directorate for Human Rights of the MINJUSDH is mandated to guide the formulation of public policies with a human-rights-based approach, with a special emphasis on vulnerable populations (art. 84 of the Regulation of Organisation and Functions of the MINJUSDH).

The MINJUSDH formulates National Action Plans on Human Rights. Since 2006, three plans have promoted inter-institutional co-ordination on the elaboration, implementation and follow-up of the plan. The latest 2018-20‑21 Plan identifies strategic actions to promote and protect civil, political, economic, social, cultural and environmental rights and proposes strategic actions in favour of vulnerable populations (see Chapter 6). Since 2022, a working group made of public and private actors, including civil society organisations and business representatives, has been working in a Multisectoral National Policy on Human Rights (Ministerial Resolution 0063-2022-JUS, from 19 March 2022), which has identified inequality and discrimination in the exercise and full enjoyment of people’s human rights as a public problem (MINJUSDH, 2023[25]). This ministry also led the development and adoption of the National Action Plan on Business and Human Rights 2021-2025 (MINJUSDH, 2021[26]). This National Action plan contains ten actions that seek to design and strengthen mechanisms to ensure that people affected by human rights violations can access redress through judicial, administrative, legislative, or other measures. In addition, the MINJUSDH has promoted the approval of regional ordinances for the regional implementation of the National Action Plan on Business and Human Rights. To date, two Regional Governments (Ica and Piura) in Peru have approved these types of regulations.

Under MINJUSDH’s leadership and through the co-ordination of a special commission (Special Commission for the Implementation of the new Criminal Procedure Code), the implementation of the new Criminal Procedural Code (Código Procesal Penal, CPP) at the national level is being pursued (Box 2.7). In July 2004, the new CPP was approved (through Legislative Decree 957) and, between 2006 and 2021, was gradually introduced in the courts in the different judicial districts of the country. Today, the new CPP has been implemented throughout the country. However, some pending cases are still being processed under the old criminal code (as they started before the new CPP entered into force). The judiciary is adopting measures to finish these cases (see Chapter 5).

In addition, it must be highlighted that in April 2021, the Supreme Decree N° 004-2021-JUS was approved, which created the Intersectoral Mechanism for the Protection of Human Rights Defenders. The Mechanism congregates nine public agencies of the executive branch, and the MINJUSDH co-ordinates its implementation. It aims to prevent, protect and offer access to justice for human rights defenders who face situations of risk as a consequence of their work via permanent monitoring of these situations. This Mechanism has installed Regional Boards as a territorial strategy to guarantee multilevel co-ordination in order to prevent and protect human rights defenders in high-risk territories.

Box 2.7. The implementation of Peru’s new Criminal Procedural Code

The new CPP is a significant shift in Peru’s criminal justice administration as it moves it from an inquisitorial to an adversarial system, where the public prosecutor plays a more key role in the investigation and the accusation, whereas before, the investigation and sanction were part of the judge’s role. In this way, impartiality and quicker justice processes are promoted. It further provides a series of measures to increase the efficiency of the justice system:

• It ensures uniformity in the legislation as the whole country applies the same procedural code, which establishes a new criminal proceeding of three stages: preparatory investigation, intermediate stage, and judgement, separating the functions of investigation and judgement (now the investigation is a function of the public prosecutor and the judgement of the judge).

• It redefines the role of judges and prosecutors, giving the power to the prosecutor and not to the judge to open cases, besides the prosecutor’s investigation and accusation role.

• It promotes quicker criminal justice proceedings in several ways. It introduces more oral hearings in the different stages of a process and makes trials open to the public rather than relying solely on written proceedings behind closed doors. It allows for alternatives to trial, such as the public prosecutor’s discretion not to prosecute (principio de oportunidad) and compensation agreements (acuerdos reparatorios) between the parties. It implements mechanisms to streamline cases, like allowing the prosecutor to directly accuse (acusación directa) based on pretrial investigation findings and enabling early termination of cases when the defendant accepts charges in exchange for benefits. Another mechanism is effective collaboration (colaboración eficaz), where a person provides information in exchange for leniency in their own criminal proceeding or sentence.

• It reduces the number of accused under preventive detention in prison facilities, promotes inter-institutional co-ordination between the police and the Public Ministry to carry out investigations, and guarantees the fundamental rights of the accused and the victims during the entire criminal proceeding, including the presumption of innocence.

Source: The new Criminal Procedures Code, approved by Legislative Decree 957, published 29 July 2004.

The Justice and Human Rights Commission of the Congress

This commission is one of 24 congressional specialised working groups made up of members of Congress. Its role is to follow up and supervise the functioning of relevant public institutions and to study and issue opinions on draft legislation before debate and approval by Congress in plenary session (Regulation of the Congress, arts. 34 and 35).

The Inter-American Court of Human Rights

Peru adhered to the American Convention on Human Rights (also known as the San Jose Pact) in 1978 and has recognised the adjudicatory authority of the Inter-American Court of Human Rights, an autonomous judicial institution whose purpose is to apply and interpret this human rights treaty. Thus, Peru has two systems protecting fundamental rights:

• The constitutional justice system framed by the Constitution and Peruvian law.

• The Inter-American system for human rights protection, which allows cases against the state to be brought before its Inter-American Court once remedies under domestic law have been exhausted (American Convention on Human Rights, art. 46). Peru is the country with the most cases decided against it by this court, and currently counts 105 settled cases and a further 14 cases pending before it (IACtHR, 2022[27]). These relatively high figures somehow translate into the trust that Peruvians place in international justice regarding fundamental and human rights violations.

2.5. Main initiatives to reform Peru’s justice system

In response to the key issues identified in the sections above, notably corruption in the justice system and its impact on perceptions regarding respect for human rights in the country, Peru has pursued several initiatives to enhance the efficiency of its justice system. Since the return to democracy in 2000, three major efforts to reform the justice system have been made:

• the National Plan for the Reform of the Administration of Justice (2004);

• the National Agreement on Justice (2016); and

• the Commission for Judiciary Reform (the Wagner Commission) (2018) and its Public Policy for the Reform of the Justice System (2021).

2.5.1. The National Plan for the Reform of the Administration of Justice (2004)

One of the most important reform initiatives undertaken since Peru’s return to democracy was led by the Special Commission for the Integral Reform of the Administration of Justice (Comisión Especial para la Reforma Integral de la Administración de Justicia, CERIAJUS) created in 2003 (Law 28083). Chaired by the president of the judiciary, it consisted of 16 members from the justice system and civil society. In 2004, CERIAJUS approved the National Plan for the Reform of the Administration of Justice (Plan Nacional para la Reforma de la Administración de Justicia) (Box 2.8). As mentioned in the plan, this marked the first time that a forum was created to enable the participation and collaboration of different institutional justice actors and civil society representatives on the design of guidelines for a reform of the justice system. However, as CERIAJUS was mandated to create the national plan but not implement it, its work ended once the plan was presented to the President in 2004 (Comisión para la Reforma de la Justicia, 2018[28]). Of all its proposals, only the reform of the National Council of the Magistrature was implemented, and only once the Judiciary Reform Commission had recommended it in 2018, as will be explained later in this chapter.

Box 2.8. The National Plan for the Reform of the Administration of Justice

The plan was considered the most considerable effort ever made to think about the problem of justice in Peru and to formulate a comprehensive reform proposal.

The plan focused on eight areas of work: 1) access to justice; 2) anti-corruption policies; 3) modernisation of the judiciary and the Public Prosecutor’s Office; 4) human resources; 5) governance, administration and budget; 6) predictability and jurisprudence; 7) criminal justice; and 8) regulatory adjustments.

The following reforms were proposed to Peru’s 1993 Constitution:

• the impossibility for the executive to amend the judiciary’s budget

• the recreation of the National Council of the Magistrature as an autonomous body in charge of the selection, appointment, promotion and disciplinary regime of judges and prosecutors

• the elimination of the ratification of judges and prosecutors every seven years

• the establishment of co-ordination relationships between the judiciary, the Public Ministry, the Constitutional Court, the National Council of the Magistrature and the Academy of the Magistracy

• the recognition of the conflict-resolution capacity of peasants, native, Indigenous communities, and peasant patrols (rondas campesinas)

• the recognition of the right to due process as a fundamental right.

Source: (CERIAJUS, 2004[29]; Lovatón Palacios, 2017[30]).

As CERIAJUS did not include mechanisms to implement its advice, and considering the fragmentation of the justice system, the plan was not executed in a co-ordinated manner, leaving each institution to pursue its own reform efforts in isolation. Notwithstanding, a considerable number of proposals made by CERIAJUS were later implemented or are currently being advanced by justice institutions; others were included in the justice reform initiatives that followed this effort, as presented in the next section.

2.5.2. The National Agreement on Justice (2016)

More than ten years after the creation of the National Plan for the Reform of the Administration of Justice, and with little progress in implementing the previous reform plan, a new effort was launched by President Pedro Pablo Kuczynsky’s (PPK) government to promote dialogue and co-ordination on justice issues. This initiative, the National Agreement on Justice (Acuerdo Nacional por la Justicia), illustrated the high priority afforded justice reform by the PPK government; it was established in 2016 as an inter-institutional agreement between the judiciary, the Public Ministry, the National Council of the Magistrature, the MINJUSDH and the Academy of the Magistracy (Box 2.9).

Box 2.9. The National Agreement on Justice

The National Agreement on Justice focused on four thematic working areas and lines of action:

1. Institutional reform, including revising the legal framework, functioning of justice institutions, and implementing interoperability initiatives.

2. The fight against corruption, including revising the disciplinary system of the justice administration.

3. Access to justice, including the use of native languages; the strengthening of the Justice of the Peace and the relationship between ordinary justice and the district of the native and Indigenous peoples; the promotion of civil society participation; and transparency in the access to judicial resolutions.

4. Training, capacity building and selection of judges and prosecutors, including developing an inter-institutional training policy; improving magistrate-selection criteria; and co-ordination and collaboration with law schools in training lawyers; topics and reforms that CERIAJUS also considered.

Source: (Acuerdo Nacional por la Justicia, 2016[31]).

In this context, and to comply with one of CERIAJUS’ recommendations, the executive branch (as part of the National Agreement on Justice) presented to Congress in 2017 a draft legislation that created the Interinstitutional Permanent Council for the Cooperation, Coordination and Follow-Up of the Public Policies on Justice (Consejo Interinstitucional Permanente de Cooperación, Coordinación y Seguimiento de las Políticas Públicas en materia de Justicia) also called Inter-Justicia, as a co-ordination mechanism between the institutions of the National Agreement on Justice. Its purpose and mandate were to implement the recommendations of CERIAJUS and other existing justice public policies and to function as a specialised body in developing and implementing future justice policies.

The bill was not voted into law, although the Justice and Decentralisation Commissions of Congress approved it. Thus, the co-ordination mechanism envisaged in the bill was never institutionalised (Consejo para la Reforma del Sistema de Justicia, 2021[32]) (Box 2.9).

In addition to its four thematic lines of action, the National Agreement on Justice established as an urgent matter the need to develop a justice service map (Mapa de la Justicia), with a review of the justice institutions and information about the initiatives, how much, how, where, and why human and financial resources should be assigned to institutions to implement the agreement.

Neither the National Plan for the Reform of the Administration of Justice nor the National Agreement on Justice included a co-ordination mechanism to monitor and evaluate the implementation of these initiatives and the decisions made during their meetings. Importantly, most of the activities related to these initiatives faded in 2017.

2.5.3. The Commission for Judiciary Reform (Wagner Commission) (2018) and its Public Policy for the Reform of the Justice System (2021-2025)

The current effort to pursue reforms to the justice system was launched as a result of a major corruption case (CNM audios Los Cuellos Blancos del Puerto) in July 2018, which involved judges from the Superior Court of Justice in the Callao district, including the former president of the court, a former magistrate of the Supreme Court and members of the National Council of the Magistrature (Consejo Nacional de la Magistratura). Evidence confirmed widespread influence peddling within the judicial system. In response, former President Martin Vizcarra established, in consultation with Congress, the Commission for Judiciary Reform (the Wagner Commission) (Comisión de Reforma del Poder Judicial) to put forward a comprehensive judicial reform.

This commission’s report, which draws on CERIAJUS’ 2004 Plan and the 2016 National Agreement on Justice, produced recommendations to promote the fight against corruption in the judiciary, including in the institutions and human resources management systems of the judiciary and the Public Ministry (see Box 2.10).

Box 2.10. Reforms recommended by the Commission for Judiciary Reform in 2018

This Commission for Judiciary Reform’s report, which draws on CERIAJUS’ 2004 Plan and the National Agreement on Justice, recommended the following reforms in 2018:

• Reform the National Council of the Magistrature.

• Reform the selection of supernumerary judges and provisional prosecutors.

• Further integrate information technologies to accelerate judicial processes and ADR mechanisms.

• Create the Council for the Reform of the Justice System.

• Create the National Specialised System of Justice for the Protection and Sanction of Violence against Women and Family Members.

• Promote lawyers’ ethics.

• Create a procedural discharge plan.

• Create the Supreme Anti-corruption Prosecutor’s Office.

• Create the Integrity and Control National Authority in the judiciary and the Public Ministry.

• Create the National Control Authorities of the Public Ministry and the National Control Authorities of the Judiciary to replace the Judicial Oversight Office.

• Create the National Specialised System of Justice to implement the Law to Prevent, Sanction and Eradicate Violence against Women and Family Members (Law 30364), including the implementation of the Women Emergency Centres and interoperability between the judiciary, the police and the Public Ministry.

• Include within the Transparency and Access to Public Information Law (Law 27806) a legal transparency framework for all institutions considered part of the Justice System.

Source: (Bazán Seminario, 2020[33]; Comisión para la Reforma de la Justicia, 2018[28]).

Following these recommendations, the National Council of the Magistrature was disbanded in 2019 and replaced with the National Board of Justice (Junta Nacional de Justicia). The Council for the Reform of the Justice System (Consejo para la Reforma del Sistema de Justicia, CRSJ) was also created; as part of its mandate, it prepared the Public Policy for the Reform of the Justice System 2021-2025 (Reforma del Poder Judicial, Law 30942), which was approved in July 2021. This new policy broadened the definition of justice by emphasising the importance of enhancing access to justice for all.

The Public Policy for the Reform of the Justice System provides a diagnostic of the justice system, identifying its problems and challenges, and offers public policy proposals under nine objectives (Box 2.11). These build on several 2004 CERIAJUS recommendations detailed in the previous section (such as the improvement of data governance and the interoperability of the justice system, the promotion of access to justice, the improvement of human resources and human resources management in the justice administration’s institutions and other reform initiatives) and for the first time adopts a gender perspective (see Chapter 6).

Box 2.11. Public Policy for the Reform of the Justice System (2021-2025)

Policy Objective 1: Promote data governance and the interoperability of the justice system, including by creating an inter-institutional Committee on Data Governance for the justice system; implementing the criminal and non-criminal Electronic Judicial Files (Expediente Judicial Electrónico, EJE) and the Electronic Prosecutor’s File (Carpeta Fiscal Electrónica); and implementing the interoperability of the justice system in the National Interoperability Platform, among others.

Policy Objective 2: Guarantee access to justice for all, including improving basic justice modules in terms of infrastructure and logistics; promoting and strengthening itinerant justice (justicia itinerante); promoting access to justice in the original languages of different communities; providing justice services with a human rights, gender and interculturality approach, including for vulnerable populations; promoting intercultural justice, including by implementing co-ordination mechanisms and promoting access to justice to peasant, native and Indigenous communities; and strengthening and promoting ADR mechanisms, among others.

Policy Objective 3: Modernise non-criminal judicial processes in alimony, contentious administrative, civil and labour processes, including introducing measures for procedural disposition, such as by implementing the oral litigation civil model at the national level and implementing the Procedures Labour Law and jurisdictional labour bodies (órganos jurisdiccionales laborales).

Policy Objective 4: Modernise criminal justice processes and the penitentiary system, including by elaborating and updating policies for different crimes; strengthening police and prosecutor’s investigation capacity; promoting interoperability, including between the prosecutors’ offices and the police; implementing the PCC; strengthening the juvenile justice system; improving the quality and coverage of prison services, infrastructure and security equipment; and promoting alternative measures to prison and reducing overcrowding.

Policy Objective 5: Strengthen human resources management and planning in the justice system’s institutions, including by reducing the number of provisional judges and prosecutors and increasing the number of tenured judges and prosecutors; reforming the Academy of the Magistracy; and increasing the number of trained security and justice operators.

Policy Objective 6: Improve legal education and practice by implementing the new model of lawyers’ professional responsibility and promoting ethics and legal education.

Policy Objective 7: Strengthen anti-corruption policies and disciplinary and ethical control by creating a national system of transparency, access to public information and personal data protection; implementing the Internal Control System in the justice system’s institutions; and strengthening the disciplinary control of judges and prosecutors.

Policy Objective 8: Fight violence against women and family members, including by increasing the coverage of the Integrated Judicial Modules (Módulos Judiciales Integrados) for violence against women and family members; improving police attention to cases; and improving the investigation and execution of protection measures for victims.

Policy Objective 9: Strengthen the predictability of judicial decisions (legal certainty) and legal adaptation, including by developing a study for the standardisation of precedents and revising and updating laws and regulations.

Source: (Consejo para la Reforma del Sistema de Justicia, 2021[32]).

To implement the reform, the CRSJ, supported by a technical body led by the MINJUSDH, was established to co-ordinate its implementation (Box 2.12). This was the first time a co-ordination mechanism for implementing justice reforms was established by law.

Despite efforts to create this implementation council through legislation, the execution of its mandate has encountered considerable challenges. In addition to budgetary considerations, a framework for monitoring and evaluation was not clearly defined. This prevented the institutions and the CRSJ from measuring progress and quantifying impact against strategic results and outcomes.

Most importantly, the CRSJ, which should have been convened by the President of the Republic and met once a month, did not meet until almost two years later, on 9 January 2024, partly due to the high level of political instability.

Box 2.12. The Council for the Reform of the Justice System

As detailed in Law 30942, the Council for the Reform of the Justice System’s primary role is to formulate, co‑ordinate and monitor the implementation of the Public Policy for the Reform of the Justice System 2021-2025 (art. 3). Reflecting a whole-of-state effort, the CRSJ is composed of the president of Peru, the president of Congress, the president of the judiciary, the public prosecutor, the president of the National Board of Justice, the National Comptroller General and the Ombudsperson (Law 30942, art. 2).

In terms of how to lead and properly implement the reform of the justice system, as detailed by Law 30942, the president of Peru is responsible for calling for the CRSJ and co-ordinating the election of the CRSJ president. The presidency of the CRSJ is expected to rotate among those who comprise it for a period of one year. The CRSJ is planned to meet once a month, and the extraordinary sessions are called by its president. Its decisions and agreements are to be adopted by consensus, and both the sessions and agreements are to be made public (Law 30942, art. 4).

The CRSJ is supported by a technical committee formed by the justice system institutions, whose role is to provide the CRSJ with permanent technical support and assistance. This committee includes representatives from the above-mentioned institutions and includes the police; the Academy of the Judiciary; the National Jury of Elections (Jurado Nacional de Elecciones); the Ministry of Economy and Finance; and a representative of the peasant patrols (rondas campesinas) (Law 30942, art. 6). The Technical Council for the Reform of the Justice System is required to publish quarterly reports on the progress of the processes of implementation and execution of the public policies for the reform of the justice system (Law 30942, art. 7).

Source: (Consejo para la Reforma del Sistema de Justicia, 2021[32]).

Despite Peru’s efforts to reform its justice system, these reform initiatives developed in 2004 are yet to be implemented. Indeed, there has been limited continuity and co-ordination across institutions to drive the implementation of these reform projects, both due to the lack of institutionalised co-ordination mechanisms, as mentioned above, and the lack of political continuity, which is key to seeing through the implementation of such challenging, multidimensional, inter-institutional reforms.

Considering the complexities of reforming the justice system and the diversity of the actors involved, leadership and political commitment at the highest levels of the executive are of extreme importance. Indeed, the executive is the only branch capable of bringing together all actors, using effective and efficient governance mechanisms and sufficient economic resources, to ensure these reforms are effectively implemented to guarantee their sustainability over time. Furthermore, the MINJUSDH, as part of the executive branch and as established by law, is the competent institution mandated not only to lead the design of this policy but to play a key role in co-ordinating its execution.

However, the latest Public Policy for the Reform of the Justice System (2021-2025) has not been given effect, and the council overseeing its design and implementation has yet to adopt decisions and plan for its co-ordinated implementation. Meanwhile, institutional members of the CRSJ have been taking steps to advance justice reform policies and initiatives in a relatively isolated and fragmented manner and with limited co-ordination with relevant institutional partners, thus limiting the full impact of implementing the originally planned multidimensional Public Policy Reform. In addition, there has been little participation of academia and civil society organisations in implementing these reforms, which is required by law and important if these reforms are to respond and be seen to respond effectively to the needs of specific communities and population groups.

2.6. Access to justice: An implicit and narrow recognition in Peru’s justice system

Although the Peruvian Constitution does not explicitly include a right to access to justice, it approaches this right by establishing rights to observance of due process and jurisdictional protection (art. 139). This is confirmed in the 2004 Constitutional Procedure Code (art. 4). The Constitutional Court has also subsumed the right of access to justice under the right of jurisdictional protection, limiting the concept of access to justice to accessing the judiciary (judicial procedures) while not including access to other justice services (Galicia Vidal and Mujica Coronado, 2017[34]). This way, the Constitution only further includes arbitration (art. 139). It establishes that the judicial branch exclusively exercises the power to administer justice (art. 138) and recognises the special jurisdiction of peasant and native communities (art. 149). This lack of an explicit right to access to justice and its narrow interpretation have focused access-to-justice matters on courts’ and judges’ services.

In 2010, the Executive Council of the Judiciary subscribed to the Brasilia Regulations regarding Access to Justice for Vulnerable People. According to Article 2 of the Brasilia Regulations, effective access to justice means: the application of a legal culture; access to legal assistance (specialised and cost-free); access to public defence; a right to interpretation; a review of procedures and procedural requirements; access to ADR mechanisms; and to a system to solve legal disputes within Indigenous communities. Under these rules, the Peruvian Executive Council of the Judiciary has recently implemented measures to strengthen the judiciary’s institutional arrangements, so as to improve access to justice in Peru, with the creation of special commissions, the issuance of guidelines, protocols, activities and plans to implement human rights approaches, and to improve vulnerable groups' access to the justice system (see Chapters 3 and 6).

As mentioned above, the MINJUSDH’s National Plan on Human Rights 2018-2021 had as one of its objectives (Strategic Objective 3) the guarantee of access to justice, limiting it to increasing the number of public defenders and promoting the quality of the public defence service with emphasis on poor and vulnerable people. However, it does not establish mechanisms or strategies to guarantee access to justice services to these populations, considering their realities, problems or barriers to access to justice. However, it is important to mention that a new Multisectoral National Policy on Human Rights is being developed, now with a territorial and intersectoral approach, that will certainly shape how justice services are delivered to Peruvian citizens.

2.6.1. National Plan of Access to Justice regarding Vulnerable Populations (2022-2030)

Based on the judiciary’s National Plan of Access to Justice for Vulnerable Populations in Peru (2016-2021) and the Brasilia Regulations on Access to Justice for Vulnerable People, signed by the judiciary and not by the state, the Executive Council of the Judiciary approved the National Plan of Access to Justice regarding Vulnerable Populations (2022-2030). This plan, applicable to the judiciary, aims to improve vulnerable populations’ access to justice by integrating the various efforts that the judiciary has made to improve the co-ordination of such initiatives and measure their impact. Similarly to the 2016-‑2021 National Plan on Access to Justice mentioned above, the 2022-2030 Plan includes adopting a broader approach to access to justice than the one currently adopted by the Peruvian Constitutional Court. The Plan includes actions such as capacity-building activities with public officials from the judiciary, justice fairs, mobile services, the use of interpreters for Indigenous communities and the use of technology to improve access to justice services (provided by the judiciary) for vulnerable populations in Peru (Poder Judicial del Perú, 2022[35]) (see Chapters 3 and 6). Yet, there is scope to expand this approach to other issues.

2.7. The OECD Justice Review Project

Well-functioning justice institutions are crucial to supporting long-term social and economic outcomes, fostering legal predictability and generating an attractive environment for investment and business. The Government of Peru has demonstrated that it understands this paradigm through its successive justice reform initiatives and by asking the OECD for advice on modernising its justice system to move the country closer to OECD standards and practices in this area.

As requested by the Government of Peru and with the support of the European Commission, this review aims to support Peru on how best to advance its complex and challenging justice modernisation agenda by benchmarking Peruvian practice against OECD standards and recommending ways and means to close gaps between this practice and the OECD standards. Through its benchmarking analysis and advice, the review aims to support Peru as it seeks to design and deliver public justice policies that modernise its institutional and functional arrangements in a way that improves the administration of justice and its approaches to people-centred service delivery and, in so doing, support Peru in moving closer to OECD standards of practice in this area.

This review process consists of two components:

1. Governance and institutional arrangements: The first component involves a systemic examination of structures, roles and responsibilities, procedures and practices in the justice system (justice institutions, ADR, lawyers and other legal professionals) in Peru to support the country in developing a coherent, gender-sensitive and strategic approach to justice reform. It is divided into five chapters on: people-centred access to justice and the rule of law (this chapter, Chapter 2); the justice system (Chapter 3); the governance, management and performance of the justice system (Chapter 4); a digital, seamless and efficient justice system (Chapter 5); and a people’s needs-driven justice system (Chapter 6).

2. Access to justice: The second component analyses specific delivery mechanisms and modalities of legal assistance and justice services for vulnerable groups, including Indigenous peoples and women, and in particular, women who are victims of gender-based violence. It aims to promote access to justice for all and foster legal and justice service delivery models to be more responsive and targeted to specific vulnerabilities and priority areas. This component was conducted in two pilot regions (Lima and San Martin). It included the measurement and mapping of people’s needs, experiences and costs in accessing justice, considering the experiences of vulnerable groups in remote areas. While findings under this second component are reflected in all chapters, they are presented in greater detail in Chapter 6.

To develop a deeper understanding of access to justice issues in Peru, this review presents a “journey mapping” of legal needs in two regions (Lima and San Martin), set out in Chapter 6. This methodology tracks the pathways to justice used by individuals, families, and small businesses to address legal problems, as well as the pathways established by numerous services and agencies for this purpose. The approach considers various levels of justice systems and journeys based on a legal problem (OECD, 2020[5]). This methodology enables the identification of two crucial factors:

• People’s perceptions of, and trust in, the justice system as a key enabler for people-centred justice services and pathways. In fact, people need to feel a minimal degree of trust in institutions that can deliver justice services to them and reach out to them to solve their problems.

• Designing pathways and services for all by paying particular attention to the experiences of marginalised and vulnerable groups. It is not enough to improve physical access to justice services; there is also a need to improve services and pathways to enhance people-centred justice systems.

The methodology used for writing this review was a combination of conducting research and interviews, gathering data and reviewing documentation provided by the Peruvian institutions. In-person interviews with governmental institutions took place from 28 March to 1 April 2022, during the OECD fact-finding mission to Lima, and virtual meetings with justice institutions, academia and civil society organisations, all of which provided the OECD team with knowledge and understanding of the justice system in Peru and its functioning. A second mission was organised in October 2023 to better understand people’s access to justice on the ground by focusing on two regions: Lima and San Martin.

Desk research, including laws, policies, regulations, academic articles, journals and newspaper articles, jurisprudence, and information shared by the justice institutions, helped ensure that the review was informed with relevant and updated laws, regulations, and policies.

The analysis and advice presented in this review benefitted from policy advice based on good practices that have been proven to improve justice outcomes in OECD Member countries. This review also benefitted from the participation of a Country Peer – a justice expert from Colombia – who engaged during the fact-finding mission and in meetings held periodically throughout the review with different institutions across Peru’s justice system. The Country Peer shared knowledge and good practices in Colombia that could be implemented in Peru.

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[4] OECD (2018), Opportunities for All: A Framework for Policy Action on Inclusive Growth, OECD Publishing, Paris, https://doi.org/10.1787/9789264301665-en.

[19] OECD (2017), OECD Integrity Review of Peru: Enhancing Public Sector Integrity for Inclusive Growth, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/9789264271029-en.

[15] OXFAM and I. IEP (2022), I Encuesta nacional de percepción de desigualdades 2022 [I National Survey on inequalities perceptions 2022], https://oi-files-cng-prod.s3.amazonaws.com/peru.oxfam.org/s3fs-public/file_attachments/I%20Encuesta%20nacional%20de%20percepci%C3%B3n%20de%20desigualdades-ENADES%202022-v2.pdf.

[35] Poder Judicial del Perú (2022), Informe Sustentatorio Plan Nacional de Acceso a la Justicia de Personas en Condición de Vulnerabilidad –2022 – 2030 [Support Report National Plan of Access to Justice for Vulnerable Populations], https://www.pj.gob.pe/wps/wcm/connect/ajpvyjc/s_ajpvcyjc/as_noticia/cs_n_piden_que_consejo_ejecutivo_del_poder_judicial_apruebe_plan_nacional_de_acceso_a_la_justicia_para_personas_en_vulnerabilidad.

[17] Transparency International (2023), Corruption Perception Index 2023, https://www.transparency.org/en/cpi/2023.

[23] UN DESA, U. (2022), E-Government Survey 2022. The Future of Digital Government, United Nations, https://desapublications.un.org/sites/default/files/publications/2022-09/Web%20version%20E-Government%202022.pdf.

[2] UN Security Council (2004), Report of the Secretary General: The rule of law and transitional justice in conflict and post-conflict societies, https://digitallibrary.un.org/record/527647?ln=en.

[3] UNGA (2012), Declaration of the High-level Meeting of the 67th Session of the General Assembly on the rule of law at the national and international levels, A/RES/67/1, https://undocs.org/A/RES/67/1.

[13] World Justice Project (2022), WJP Rule of Law Index 2022, https://worldjusticeproject.org/rule-of-law-index/.

Notes

← 1.  At least 50 legal needs surveys have been conducted in more than 30 OECD Member countries and jurisdictions, including in Australia; Canada; Colombia; Japan; the Netherlands; New Zealand; the Slovak Republic; England and Wales, Northern Ireland, and Scotland (United Kingdom); the United States, and in such non-Member economies as Hong Kong (China); Chinese Taipei; and Ukraine. Legal needs surveys have been conducted at the sub-national level as well, for example, in the People’s Republic of China, Indonesia, the Russian Federation and Yemen; and smaller surveys have been run in Bangladesh and Egypt (OECD, 2019[9]). Within the Latin American and Caribbean region, Colombia has implemented one of the most comprehensive legal needs surveys anywhere.

← 2. .The writ of amparo sees cases of violations of individual fundamental rights except the protection of a person’s freedom from illegal detentions, which is dealt by habeas corpus, and the protection of privacy and personal data and the right to access to information considered of public importance, which is dealt by habeas data.