This chapter focuses on the constitutional framework defining the separation and balance of powers between Peru's executive, legislative, and judicial branches and their relationship with the constitutionally autonomous institutions. It then defines the institutions that are part of the justice system, first as detailed by the Constitution, then from a people-centred approach, and lists their responsibilities and scope of services they are responsible for delivering, including their relationship with intercultural justice. Finally, this chapter evaluates the existing inter-institutional co‑ordination and co‑operation mechanisms Peru has implemented to provide quality people-centred justice services and compares them with OECD Members’ experiences and good practices.
OECD Justice Review of Peru
3. Institutional set-up and co‑ordination in Peru’s justice system
Abstract
3.1. Introduction
The previous chapter highlighted the rule of law as a core principle defining justice systems in OECD Member countries, the steady progress towards people-centred access to justice, and the degree to which this principle applies in Peru.
This chapter assesses the institutional set-up of the justice system in Peru and the degree to which inter-institutional co-ordination strengthens the system’s efficiency and transparency, hallmarks of the rule of law and people-centred access to justice in OECD Member countries. For these purposes, this chapter first presents an overview of what is constitutionally defined as part of the justice system in Peru. It then describes the constitutional framework defining the separation of powers as existential to sustaining the rule of law and presents the strengths and challenges framing how this principle is given effect in practice in Peru. Finally, it analyses the co-ordination systems that have been implemented to ensure better coordination and co-operation across justice institutions.
This review adopts a holistic people-centred approach; hence, the scope of this analysis is broader than the judiciary itself as defined by Peru’s Constitution. The term “justice system” used in this chapter and throughout this review is more comprehensive and takes a justice service deliverable approach by assessing arrangements beyond the judiciary or the judicial branch as such. This review covers institutions in the executive branch, the autonomous constitutional institutions, alternative dispute resolution (ADR) mechanisms and the specialised justice frameworks, including Indigenous justice.
As noted in Chapter 2, since 2003, Peru has put forward a series of major justice reform plans whose implementation has been partial, unco-ordinated, and fragmented and has had limited system-wide impact on the current justice system. These include the latest justice reform initiative (2021-2025). Indeed, its full implementation has yet to be achieved, and challenges remain in terms of the justice system’s efficiency and effectiveness in serving all Peruvians.
3.2. Institutional set-up
3.2.1. The separation of powers in Peru
As in most modern democracies, Peru’s state is arranged pursuant to the principle of separation of powers (art. 43). As stated in Peru’s Constitution (1993), the state comprises three core branches: the executive, legislative and judicial branches. Each branch is assigned separate powers with specific functions that help balance them (see Box 3.1).
Box 3.1. Roles and responsibilities of the different branches of power as defined in Peru’s 1993 Constitution
Executive branch: Responsible for enforcing the law. The President is elected for a single five-year term, with no right to immediate re-election (art. 112). As Head of State and Government, the President is the guarantor of the executive power and the leader of the Armed Forces and the National Police. Among other functions, the President observes and enforces the Constitution and laws, represents the state, manages the general policy of the government, ensures domestic order, can regulate laws and issue decrees and resolutions, manages the public treasury, and can promulgate emergency decrees (art. 118). The direction and management of public services are entrusted to the Council of Ministers, comprised of 18 ministries, and chaired by the President of the Council of Ministers, who is mandated to co‑ordinate across ministries and is the spokesperson for the Government, all of whom are appointed by the President of the Republic (art. 121-122).
Legislative branch: The Congress is vested with the legislative power. It is unicameral and is comprised of 130 members elected for a five-year term by the citizens (art. 90), who, according to the Constitution, are not responsible to any authority or jurisdictional body for votes cast or opinions expressed in the exercise of their suffrage (art. 93). This branch adopts laws and legislative resolutions, and interprets, amends, or derogates existing laws, ensures respect for the Constitution and the laws, and exercises authority to enforce the responsibility of those who break the law; approves treaties; approves the budget and the general accounts; and exercises all other powers indicated in the Constitution and that properly rest within the legislative function (art. 102).
Judicial branch (also referred to as the judiciary): The Constitution assigns responsibility for the administration of justice to the judiciary, which is comprised of jurisdictional bodies: the Supreme Court of Justice, the Superior Court, Jueces Especializados o Mixtos (Specialised or Mixed Courts), Jueces de Paz Letrados (Justices of the Peace Courts) and Jueces de Paz (Justices of the Peace); and governance bodies that exercise their administration (art. 143). The Constitution also defines five additional autonomous constitutional justice institutions. These include: the Constitutional Court, the National Board of Justice (Junta Nacional de Justicia), the Public Prosecutor’s Office (Ministerio Publico), the National Jury of Elections (Jurado Nacional de Elecciones) and the Ombuds Office (Defensoria del Pueblo). The President of the Supreme Court is the head of the judicial branch (art. 144). The Constitution expressly enumerates the principles and rights of the jurisdictional function, including, among other things, the principle of judicial independence, the unity and exclusivity of the jurisdiction function, the observance of due process, the public nature of proceedings, the plurality of the jurisdictional level, the principles of never failing to administer justice, the principle that no one should be punished without judicial proceedings, the principle of not being deprived of the right of defence, the principle of free administration of justice and free defence of persons of limited means and other cases, and the participation of the people in the appointment and removal of judges (art. 139). The independence of the judiciary, whose observance is guaranteed by the state, is enshrined in the Constitution and will be presented in Chapter 4.
Source: The Constitution of Peru (1993).
As a guarantor of the separation of powers between the branches and autonomous institutions, the Constitution defines a system of checks and balances to secure a balance of powers and the state's accountability in ensuring each branch holds the other accountable to Peruvians. The Constitution places a strong emphasis on the balance of powers, especially between the executive and the legislative branches. In this regard, it establishes several key constitutional tools, especially between the executive and the legislative branches. These checks and balances are also mentioned in the regulations governing the functioning of Congress. However, these constitutional powers have not been subject to further specification or delimitation through laws and regulations. This has allowed for various interpretations of these constitutional mechanisms. In some cases, it has led to their abuse for political reasons. Those more frequently used over the past five years include the presidential vacancy for moral incapacity, the motion of censure (moción de censura) and the constitutional accusation (Box 3.2).
Box 3.2. Constitutional tools to ensure the balance of powers between branches
The “motion of confidence” or “no confidence” (cuestión de confianza), in ministerial initiative and its related “motion of censure” (moción de censura), can be adopted by Congress. These are the mechanisms by which Congress validates and makes effective the political responsibility of the Council of Ministers or an individual minister (Constitution, art. 132). A motion of censure is presented by at least 25% of the congresspersons, while a motion of confidence is by ministerial initiative. In the event of the adoption of a motion of censure, following a debate by Congress and the approval of more than half of the representatives, the Council of Ministers or the indicted minister(s) are required to resign and be replaced (Regulation of the Congress, arts. 82 and 86). In a single year (July 2021 to July 2022), four ministers were censured or forced to resign by Congress using the mechanism of a censure motion against ministers (moción de censura).
The presidential power to dissolve Congress: The President of the Republic has the power to dissolve Congress and call for new elections if Congress censures or denies confidence in two Councils of Ministers (Constitution, art. 134).
The Constitutional accusation (acusación constitucional): The Permanent Assembly of the Congress can accuse the President of the Republic, a member of the Congress, a minister, a member of the Constitutional Court, a member of the National Council of the Judiciary (now the National Board of Justice), a Justice of the Supreme Court, Supreme Prosecutors, the Ombudsperson, and the Comptroller General for any violation of the Constitution or any crime committed during their duties (Constitution, art. 99; Regulation of the Congress, art. 89). Following a constitutional accusation, a “Political Pre-trial” (analogous to an impeachment trial in the US House of Representatives) is held in Congress to decide whether Congress will suspend the accused official, declare them ineligible for public service for up to ten years or remove them from office. In the case of a formal criminal accusation, the Public Prosecutor files criminal charges before the Supreme Court (Constitution, art. 100). During President Pedro Castillo’s government (2021-22), the constitutional accusation was presented six times against former President Castillo, former Vice President Dina Boluarte, and the President of the National Jury of Elections (Jurado Nacional de Elecciones, JNE). Likewise, in 2023, it was filed against the former Public Prosecutor Zoraida Ávalos, who was ultimately disqualified for five years from holding public office..
The power to request information from public entities: Congress can request ministries and other public institutions to provide reports on the issues they consider meaningful for executing their functions. It can create special commissions that investigate any matter of public interest (Constitution, arts. 96 and 97; Regulation of the Congress, arts. 87-88).
Approval by Congress of the executive’s Budget Law. The execution of the Budget Law, as presented by the executive, requires negotiation and approval by Congress. Each year, the President of the Republic sends the draft Budget Law to Congress as prepared by the Ministry of Economy and Finance (MEF). The draft bill is debated, reviewed and approved by Congress, which can amend it. Hence, budget allocations and spending depend first on the executive branch, which prepares the budget and then on the approval of the Budget Law by the legislative branch (Constitution, arts. 78 and 80; Regulation of the Congress, art. 81) (see Chapter 4).
The declaration of presidential vacancy: Congress can declare the position of President of the Republic vacant if a majority of its members finds that the President presents permanent physical or moral incapacity. (Constitution, art. 113[2]); Regulation of the Congress, art. 89[A]). The legislative branch has also used this as a means of control. Since 2017, a motion of presidential vacancy for moral incapacity has been used at least seven times against three presidents: Pedro Pablo Kuczynski (2018), who resigned after a second vacancy motion; Martín Vizcarra (2019 and 2020), whose vacancy was declared by Congress after two attempts; and three times against Pedro Castillo (2021 and 2022), whose vacancy was ultimately approved in 2022. After the destitution of former President Martin Vizcarra, the Constitutional Court was given the opportunity through a referral to the Court to regulate the definition of “moral incapacity,” which has been broadly interpreted and used by Congress to control the executive (Landa Arroyo, 2020[1]). However, the Court declined to regulate, declaring the request inadmissible, thereby forfeiting the opportunity to define objective parameters that would define how this mechanism is to be applied (Tribunal Constitucional, 2020[2]). This prompted the Inter-American Commission of Human Rights to publicly express its concern over the repetitive and arbitrary use of this tool (Inter-American Commission of Human Rights, 2022[3]; Inter-American Commission on Human Rights, 2023[4]).
Source: (Landa Arroyo, 2020[1]), “Crisis constitucional en el Perú: tres presidentes en siete días [Constitutional crisis in Peru: three presidents in seven days]”, Agenda Estado de Derecho, https://agendaestadodederecho.com/Peru-tres-presidentes-en-siete-dias/; (Tribunal Constitucional, 2020), “Caso de la vacancia del presidente de la República por incapacidad moral [Case of vacancy of the President of the Republic for moral incapacity]”, Judgement 0002-2020-CC/TC, 19 November 2020; (Inter-American Commission of Human Rights, 2022), “CIDH reitera preocupacion por la inestabilidad politica en el Peru y su impacto en los derechos humanos [The IACHR reiterates its concern at the political instability of Peru and its impact on human rights]”, OEA Press release, 25 March 2022, https://www.oas.org/es/CIDH/jsForm/?File=/es/cidh/prensa/comunicados/2022/063.asp; (Inter-American Commission on Human Rights, 2023), “Situación de Derechos Humanos en Perú en el contexto de las protestas sociales [Situation of Human Rights in Peru in the Context of Social Protests]”, OAS, Washington, DC, https://www.oas.org/en/iachr/jsForm/?File=/en/iachr/media_center/preleases/2023/083.asp.
This has led the Constitutional Court, the autonomous institution in charge of interpreting the Constitution and resolving inter-branch conflicts, to interpret and further develop the ways and means that can be used to apply some of these tools. However, the lack of a proper regulatory framework to ring-fence the application of the constitutional control mechanisms described in Box 2.3 has allowed for their frequent and arbitrary use, undermining the balance and separation of powers.
The role of the Constitutional Court has been fundamental in interpreting the Constitution and allocating powers properly when problems associated with governance have arisen between the different branches. This reinforces the importance of this tribunal's independence and impartiality in guaranteeing constitutional stability.
The incidences of misuse of these constitutional mechanisms have affected the political landscape more broadly. The country has experienced several challenges, leading to disagreements between political groups and parties within both the legislative and executive branches. This environment has resulted in conflicts between public powers, extending even to constitutionally autonomous institutions within the justice system. Several commentators indicate that these dynamics have had a detrimental effect on Peru’s governance and ability to implement strategic reforms (Alessandro, Lafuente and Santiso, 2014[5]; Levitsky, 2016[6]; Tanaka, 2017[7]). This dynamic was most recently illustrated in December 2022 when former President Castillo attempted to dissolve Congress and rule by decree. This culminated in Vice President Dina Boluarte assuming the presidency, amidst peaceful and violent protests resulting in multiple deaths, mostly civilians, between December 2022 and January 2023 (Defensoria del Pueblo, 2023[8]).
This has led the Inter-American Commission of Human Rights (IACHR) to express its concern over the repetitive and arbitrary use of the constitutional accusation against the other branches of power and constitutionally autonomous institutions, the presidential accusation based on permanent moral incompetence, and the dissolution of the Congress once the legislature refuses twice to approve proposed councils of ministers. The IACHR has called on the State of Peru to regulate and define these mechanisms (Inter-American Commission of Human Rights, 2022[9]; Inter-American Commission on Human Rights, 2023[4]).
Political instability has also degraded the quality and delivery of public services, including justice services, partly due to the lack of long-term planning, worsening institutional fragmentation, and a corresponding absence of effective inter-institutional co-ordination, all fundamental for properly designing and delivering these services to the people.
3.2.2. Mapping Peru’s justice system
As stated in Peru’s Constitution (Figure 3.1), the administration of justice is exercised by the judicial branch and its jurisdictional bodies (Table 3.1). The Constitution also mandates additional constitutionally autonomous institutions to play a role in ensuring access to justice and in the administration of the justice system across the country: The National Board of Justice (arts. 150-157), the Public Ministry (arts. 158160), the Constitutional Court (arts. 201-205) and the Ombuds Office (arts. 161-162), which even though is not a jurisdictional body, is mandated to protect the constitutional rights of citizens (as part of the Judicial Power), the judiciary and the Academy of the Magistracy and (as part of the executive power) the Ministry of Justice and Human Rights (Ministerio de Justicia y Derechos Humanos, MINJUSDH).
Figure 3.1. Peru’s justice system institutions recognised by the Constitution
Source: OECD elaboration
Peru has adopted broader approaches to defining its justice system in its latest justice reform initiatives by including the institutions that play a role in access to justice. As detailed in Chapter 2, the National Plan for the Reform of the Administration of Justice (2004), prepared 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), adopted a systemic approach in its analysis of the justice system. It identified as part of the judicial system: the Public Ministry, the National Council of the Magistrature (now the National Board of Justice), the Constitutional Court, the Academy of the Magistracy, the Ombuds Office, the MINJUSDH and the Justice Commission of the Congress (CERIAJUS, 2004[10]).
The current justice reform initiative, the Public Policy for the Reform of the Justice System (2021-2025), defined its scope even more broadly by adding the Ministry of the Interior, the National Police, the National Jury of Elections, MEF and the peasants’ self-defence groups (rondas campesinas) (Law 30942, art. 2).
Taking into consideration Peru’s latest initiatives for justice reforms and using the OECD people-centred approach, Peru’s justice system could be summarised as follows (Figure 3.2) to which should be added the above-mentioned bodies: the Constitutional Court as part of the constitutional autonomous institutions, the Ministry of Interior/the Police and the Ministry of Women and Vulnerable Populations through the Women’s Emergency Centres of the AURORA Program (see Box 3.6 further below) as part of the executive power, and the Council for the Reform of the Justice System (Consejo para la Reforma del Sistema de Justicia, CRSJ) as the latest council created to formulate, co‑ordinate and monitor the implementation of the 2021-2025 Reform of the Justice System (Chapter 2).
Figure 3.2. Mapping of Peru’s justice system from a people-centred approach
Source: OECD elaboration.
3.3. Judicial Power within Peru’s justice system
3.3.1. The judiciary
An integral part of the justice system in Peru, the judiciary or judicial branch presents a pyramidal structure comprising the Supreme Court, Superior Courts, Specialised or Mixed Courts, the Justices of the Peace Courts, and the Justices of the Peace (Figure 3.3).
Figure 3.3. The judicial branch
Source: OECD elaboration with information from Poder Judicial (2022), Organization Chart of the Supreme Court and Governance and Control Bodies.
In each of the 35 judicial districts of Peru, management responsibilities are assigned to the Presidents of the Superior Courts, the Executive Councils of the Judiciary, and the Plenary Chambers of the Courts (Organic Law of the Judiciary, art. 72), as further detailed in Chapter 4.
The structure and summary of the competencies of Peru’s courts are summarised in Table 3.1.
Table 3.1. The jurisdictional bodies in Peru: Structure, presence and competences
Source: OECD elaboration with information provided on 16 October 2023 through Oficio. 610-2023-GP-GG-PJ, and from the Organic Law of the Judiciary and Law 29824, Peace Justice Law, and Peru Judicial Power, https://www.pj.gob.pe/wps/wcm/connect/CorteSupremaPJ/s_Corte_Suprema/as_Conocenos/historia.
At the national level, the judiciary is managed by the Chief Justice of the Supreme Court, the Plenary Chamber of the Supreme Court, and the Executive Council of the Judiciary (Consejo Ejecutivo del Poder Judicial, CEPJ). The Supreme Court is the highest jurisdictional organ of Peru, and its competence extends across the country:
The Chief Justice presides over the entire judicial branch (poder judicial) (art. 144). The president is elected by the 25 members of the Judicial Power on a two-year rotating basis.
The Plenary Chamber of the Supreme Court (Sala Plena de la Corte Suprema) is the highest-level deliberating body of the judiciary. It is chaired by the president of the judiciary and the Supreme Court of Justice and comprises all the Tenured Supreme Judges. The Plenary Chamber of the Supreme Court approves the General Policy of the Judiciary and takes decisions on institutional matters, including the selection of the representatives of the judiciary on other bodies (Organic Law of the Judiciary, art. 80). The role of the Plenary Chamber is addressed in the law in very general terms with no clarity on its specific functions.
The CEPJ manages the Judicial Power. It assumes the technical-administrative direction of the judiciary and of the organisations indicated under the judiciary by law. It also formulates and executes the General Policy and the Development Plan of the Judiciary, as well as approves its Budget Project, and exercises disciplinary assessment and evaluation, among other functions (Organic Law of the Judiciary, art. 80). The governance and management of the judiciary will be addressed in detail in Chapter 4.
To simplify its structure and eliminate the duplication of functions of its organs, a new organisational structure of the judiciary came into effect on 1 December 2023, as approved by the Executive Council (Regulation of Organisation and Functions of the Judiciary, approved through Administrative Resolution 000341-2023-CE-PJ, from 18 August 2023). It also creates the Office of Access of Information and Data Analysis, which depends on the CEPJ.
At the regional level, Higher (Superior Courts) are based in each judicial district in Peru, which usually corresponds to the number of regions. There are currently 35 Superior Courts of Justice across the country. Each Superior Court comprises a certain number of chambers according to the procedural load it manages. The Specialised Courts, in turn, are subdivided according to their speciality (civil, criminal, labour, commercial). The courts that deal with issues of more than one speciality are known as Mixed Courts and are usually situated in local areas. The number of Specialised or Mixed Courts varies in each district, depending on the number of inhabitants. The Justices of the Peace Courts are created to administer justice in certain rural and urban areas with no or limited Specialised or Mixed Courts, and their scope of action is one, two or more districts. These courts also resolve appeals from the Justices of the Peace. 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, reflecting these groups’ cultural values, forms of co-existence and social relations (Brandt, 2013). Indeed, it is estimated that there are more than 55 Indigenous communities in Peru, 51 of which are in the Amazon region and 4 in the Andes (Ministerio de Cultura, 2023[11]). The Justices of the Peace, who are not lawyers and are elected by the community, base their decisions on their best knowledge and beliefs in respect of the culture and customs of the community and the Constitution. There are 6 000 Justices of the Peace (jueces de paz) across the country.
In exercising its mandate to guarantee rights and access to justice to all populations, the judiciary also includes offices, commissions and programmes that have specialised functions to implement the general policy and plans of this branch, such as intercultural justice, gender-related justice, access to justice and environmental justice. In view of their relevance in securing access to justice, the following sections of this chapter provide an in-depth description of each of these bodies.
The National Office of Justice of Peace and Indigenous Justice
To promote intercultural justice, understood as a justice system in which ordinary justice co-exists with the various levels of Indigenous justice, the judiciary created in 2004 the National Office of Peace and Indigenous Justice (Oficina Nacional de Apoyo a la Justicia de Paz y a la Justicia Indigena, ONAJUP). The ONAJUP is part of the CEPJ and oversees the activities that the judiciary implements to develop and strengthen the Justicia de Paz (Peace Justice) (Regulation of Organisation and Functions of the Executive Council of the Judiciary, art. 30).
Even though the Constitution recognises the right of the native and peasant communities to exercise jurisdictional functions with the support of the peasant patrols (rondas campesinas) (art. 149) (Box 3.3), no law regulates or further develops this right and co-ordinates the co-existence of these two justice systems. Only a Plenary Agreement from 2009 recognises jurisdictional functions to the peasant patrols and establishes the limits of this special jurisdiction (Acuerdo Plenario No. 1-2009/CJ-116, from November 2009).
Box 3.3. Peasant patrols or rondas campesinas
The rondas campesinas or peasant patrols was the name that people gave to the type of communal defence organisation that emerged autonomously in Peru's rural and Indigenous areas in the mid-1970s as an informal response to the lack of justice services and state protection in rural areas. The members of the Andean communities use their own methods to administer justice and impose sanctions on people who threaten the security of their people. Among its original functions was to patrol trails, roads and pastures, as well as to end theft and rustling, which is one of the most condemned practices among Andean communities, as it has severely affected the livelihood of the populations. Although peasant patrols have existed for many years, they were only officially recognised in the Constitution of 1993. The 1993 Constitution granted peasants and native communities the right to perform jurisdictional functions within their territories with the support of patrols, in accordance with customary laws. This is apart from violations of fundamental rights (art.149). Their activity is regulated by Law No. 27908 and its regulations, which recognise their right to participate in the country’s political life, conciliation capacity and the general administration of justice.
Source: (Yrigoyen, 2002[12]).
In this regard, while the Law of Peace Justice (Law 29824) mentions co-ordination between the Justices of the Peace and such other community justice actors in peasant and native communities as Indigenous leaders and peasant patrols (rondas campesinas), the Law of the Rondas Campesinas (Law 27908) establishes that the ordinary and formal justice authorities should create co-ordination relationships with the peasant patrols, but it does not further develop this in detail.
Some protocols and regulations have been developed by the ONAJUP and the Commission on Intercultural Justice of the Judicial Power but in a very general manner, with no detail on the scope of Indigenous justice, on how to resolve conflicts between justice systems or on institutional co-ordination mechanisms that could contribute to resolving such conflicts (Co-ordination Protocol between Justice Systems [Protocolo de Coordinación entre Sistemas de Justicia]). According to these regulations, special justice systems have competence in the areas and topics that have traditionally fallen within their purview, based on their traditional, ancestral laws and systems. However, exercising their jurisdiction cannot contravene the fundamental rights of the Constitution or human rights.
Additional protocols have been created to ensure the use of an intercultural approach by justice system officials, the use of interpreters and translators of Indigenous languages in judicial proceedings, and co‑ordination between formal and intercultural justice.
According to the OECD interviews organised in the context of this project with stakeholders, it appears that there has been reluctance on the part of formal justice to recognise and enforce the decisions of intercultural justice, as sometimes the Justice of the Peace and the peasant patrols act outside the legal framework and not according to formal justice but following their cultural values, knowledge and ancestral practices. For example, this tension has made it difficult to co-ordinate the implementation of protection measures for victims of violence with the police. Also, even though the co-ordination protocol establishes the implementation of intercultural dialogue mechanisms, judges have shown resistance or lack of capacity to follow it. The same applies to the other justice institutions. A good practice has been implemented by the Superior Court of Justice of Cusco, which has created an inter-institutional co-ordination and dialogue mechanism on intercultural justice (Mesa Descentralizada de Coordinación de Justicia Intercultural de la Region Cusco), where the judiciary, the Public Ministry, the police, the Ombuds Office, the Ministry of Culture, universities, Justices of the Peace, peasant patrols, peasants’ communities and civil society organisations participate. However, this is not a practice replicated in all judicial districts and depends on the political will of the Superior Courts. On the other hand, the peasant patrols organise regional congresses in the different regions, where the different peasant patrols from the region and other regions participate, as well as civil society organisations, public institutions, the judiciary, the Women Emergency Centres, the Ministry of Culture, the police, the majors, the regional government, and others.
The relationship between the Justices of the Peace and the peasant patrols and other Indigenous justice actors can be uncertain and vary in each region of Peru depending on their presence or where these groups have more power in the communities, and more legitimacy regarding problem solving and as providers of intercultural access to justice. This makes 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.
The Specialised Commissions
As mentioned in Chapter 2, to ensure a more inclusive justice system, the judiciary created four specialised commissions to promote the institution’s work in the key priority areas of gender justice, access to justice of vulnerable people, intercultural justice, and environmental justice.
The creation of these commissions and offices points to an awareness of the importance of a people-centred approach because it is predicated on prioritising people’s needs, problems and the protection of fundamental rights in the Peruvian context and reality, including for the most vulnerable groups. These specialised bodies aim to facilitate co-ordination on issues between different institutions to meet specific people’s needs and provide inclusive, appropriate and co-ordinated people-centred services. The progress achieved and the challenges of these commissions are assessed in Chapters 4, 5 and 6.
a) Commission on Gender Justice
The Constitution of Peru does not include gender-specific provisions that explicitly promote gender equality and women’s rights beyond the non-discrimination provisions relating to sex (not gender) or “any other distinguishing feature” (art. 2[2]) and to the representation of women in regional councils (art. 191). Other constitutions in OECD Member countries, including countries in the region, do include specific dispositions and constitutionalised rights that promote gender equality; these tend to illustrate the underlying values and beliefs of the nation and its commitment to achieving and protecting women’s rights, as mentioned in Chapter 2.
The role of the Commission on Gender Justice (Comisión de Justicia Género) is to promote the guarantee of equal access to justice for the population and to strengthen the judiciary’s work towards this objective through the establishment of policy on gender to be applied at all levels and organisational structures. It was created in 2016 to support the implementation of the 2015 Law to Prevent, Sanction and Eradicate Violence against Women and Family Members (Law 30364). The commission comprises a Supreme Court Judge, a Superior Court Judge and a Specialised Judge; a Consultive Council of two Superior Court Judges and two Specialised Judges; and a Technical Team.
Since 2016, the commission has implemented several initiatives and policies that have advanced gender equality in the judiciary in the resolution of cases related to gender-based violence, including: the implementation of legal-proceeding interpretation standards, which recognise the importance of including a gender approach in judicial reasoning and increasing the number of female judges; the creation of specialised jurisdictional bodies on violence against women and family members in 22 judicial districts; and the reinforcement of the work and preparation of Justices of the Peace to deal with cases of violence against women and family members.
b) Commission on Access to Justice of Vulnerable People
To promote access to justice on the part of vulnerable populations, the judiciary created in 2017 the Permanent Commission for Access to Justice of Vulnerable People and Justice in Your Community (Comisión Permanente de Acceso a la Justicia de Personas en condición de Vulnerabilidad y Justicia en tu Comunidad, CPAJPCV). This commission oversees the implementation of relevant treaties that Peru has ratified, such as the Brasilia Rules on Access to Justice for Vulnerable People (approved in March 2008 by the XIV Ibero-American Judicial Summit, which Peru ratified for implementation in 2010). It promotes access to justice for vulnerable groups through the implementation of the 2016-2021 National Plan for Access to Justice of Vulnerable Persons of the Judiciary (approved by Administrative Resolution No. 090-2016-CE-PJ) (Poder Judicial del Perú, 2022[13]) and the draft of the 2022-2030 National Plan, which has not yet been approved. The commission comprises its president, two Supreme Court judges and two Specialised Court Judges.
Since 2017, the commission has implemented a series of services and trainings to increase and ameliorate access to justice for vulnerable people. Some of these initiatives include: the creation of protocols, guidelines and capacity-building activities for judicial personnel when dealing with cases with vulnerable populations (including children and people with disabilities, among others); capacity building for judges and judicial personnel on mobile justice services (justicia itinerante), which travel to remote places where vulnerable populations are located to provide justice services; legal justice fairs and campaigns (Llapanchikpaq Justicia), which take justice services from different justice institutions to remote areas to provide the population with information related to their fundamental rights; a judicial warning system (Sistema de alerta judicial), which identifies people in vulnerable conditions so their legal process can be monitored more closely (especially for elderly people); the creation of the accreditation of legal counsellors (orientadoras judiciales), who are leaders within their communities who have been trained to guide people on issues related to gender-based and inter-family violence.
c) Commission on Intercultural Justice
As part of the judiciary’s efforts to promote the rights of the Indigenous, native and peasant communities and the peasant patrols (rondas campesinas) and their cultural values, practices, and ways of co‑existence, the Commission on Intercultural Justice (Comisión de Justicia Intercultural) was created to implement a concrete roadmap for improving intercultural justice in Peru (Administrative Resolution 499-2012-P-PJ, from 2012). The roadmap’s main objective was to promote the communication and co‑ordination between the different justice systems (including the creation of the ONAJUP, as seen above) and develop intercultural training, research and capacity-building activities on the different intercultural justice systems available in the country.
To increase the co-ordination between formal and intercultural justice, the commission has implemented several training and capacity-building activities for judges and other justice public servants on existing protocols and regulations to promote its recognition and acceptance for effective co-ordination and access to justice for all. The same approach has been taken with the Justices of the Peace, the peasant patrols and other social leaders to train them on human rights and the formal justice system. Other institutions, such as the Ombuds Office, the Ministry of Women and Vulnerable Populations and non-governmental organisations (NGOs), have also trained the peasant patrols and other social leaders on formal justice and fundamental rights.
d) Commission on Environmental Governance
The Constitution of Peru includes a general provision on the fundamental right to a balanced and appropriate environment (art. 2[22]). The right to environmental justice is established by the General Law of the Environment (Law 28611 from 15 October 2005), which recognises the principle of environmental responsibility (art. 9) and the principle of environmental governance (art. 11).
The existent judicial mechanisms for environmental justice are provided through existing procedural laws. Environmental justice is enforced through ordinary judicial mechanisms (contentious administrative, criminal, and civil procedures) and constitutional judicial mechanisms (habeas data, the writ of mandamus, the wright of unconstitutionality, popular action), but through ADR and amparo procedures (see Chapter 4 for further description of these mechanisms). In addition, there are Public Prosecutor’s Offices specialised in environmental matters (Fiscalías Especializadas en Materia Ambiental, FEMA), an environmental specialised court in the city of Puerto Maldonado, and courts with environmental competence in ten additional judicial districts.
As part of the justice reform efforts and modernising the judiciary, the Plenary Chamber created the Commission on Environmental Governance (Comisión Nacional de Gestión Ambiental) in 2016. Since then, the first environmental specialised court was established in Puerto Maldonado in 2018, and ten other criminal courts with environmental competences have been created across the country. Eco-efficiency committees have been created in the Superior Courts, and guidelines on eco-efficiency measures in the judiciary and capacity-building activities have been created for judges and justice personnel on environmental-related crimes.
3.3.2. The Academy of the Magistracy
The Academy of the Magistracy (Academia de la Magistratura, AMAG), responsible for the education and training of judges and prosecutors at all levels, benefits from administrative, academic and economic autonomy from the judiciary (Constitution, art. 151; Law 26335, art. 1). The AMAG is responsible for developing an integrated and continuous system of capacity building for judges (including their certification and accreditation) and prosecutors of the Public Ministry (Constitution, art. 151). Training and capacity building of judges is addressed in Chapter 4.
The AMAG co-operates with the National Board of Justice (Junta Nacional de Justicia, JNJ) (which will be described in detail in the next section) on the performance appraisal or evaluation process of judges and public prosecutors that it carries out every three and a half years, according to which the JNJ may ask the judge or prosecutor to participate in a training programme from AMAG. To do so, AMAG and the JNJ design and co-ordinate evaluation processes to pursue these capacity-building activities (Regulation of Judges and Prosecutors Performance Appraisal, approved by Resolution No. 515-2022-JNJ).
Several additional institutions also provide training and continuing education for their staff on gender, violence against women, and Indigenous and multicultural justice, among others, including the judiciary for its judges through its specialised commissions and the Public Ministry for its public prosecutors. AMAG is the institution in charge of training and upskilling judges and public prosecutors (Organic Law of the Academy of the Magistracy, art. 2). This fragmentation in capacity building and overlap of mandates create various levels of capacities of legal professionals, as the training programmes depend on the availability of resources in these institutions, on the institution’s specialisation and the priority given to training and upskilling. This situation is not conducive to fostering an institutionalised, integrated, co-ordinated, professionalised and sustainable system of continuing education for judges, prosecutors and other personnel involved in the administration of justice.
3.4. Constitutionally autonomous institutions within Peru’s justice system
3.4.1. The Constitutional Court
In addition to the judicial branch and situated outside its structure, the Constitutional Court, an autonomous and independent body, exercises jurisdictional functions over the justice system by overseeing adherence to the Constitution (art. 201). The Constitutional Court consists of seven members (not necessarily professional judges) who are elected for five-year terms by Congress (with no immediate term renewal). The protection of constitutional rights can be invoked before the courts of the judicial branch and the Constitutional Court. Peru has adopted a mix of concentrated and dispersed approaches to constitutional review, as this function is shared between the Constitutional Court and the judiciary (Box 3.4).
Box 3.4. Models of constitutionality assessment: Parliamentary, continental and diffuse
Three models of constitutionality assessment frame the discussion around the constitutional review:
Parliamentary sovereignty model: According to this model, judicial review of constitutionality is either forbidden (art. 120, Constitution of the Netherlands) or limited (Canada, Finland, New Zealand, Switzerland and the United Kingdom). In some countries, the legislature stands on an equal or superior footing to the courts regarding constitutionality review, as in the “new Commonwealth model of constitutionalism”: Canada, New Zealand and the United Kingdom. The reasoning is that while courts play a significant role in protecting fundamental rights, they should not be the only institutions capable of interpreting those rights. This way, the articulation and enforcement of constitutional norms, as well as the responsibility for implementing constitutional values, are vested in parliamentary sovereignty. While courts interpret and enforce the constitution, the legislature decides and determines what will be law.
European continental (or Kelsenian-Austrian) concentrated and abstract model: The centralised Kelsenian system is based on two pillars: 1) it concentrates the power of constitutional review in one judicial body, typically a Constitutional Court; 2) it situates that court outside the structure of the judicial branch. Because of the hierarchy of laws, constitutional judicial review is seen as incompatible with the work of an ordinary court. The abstract review, as employed in France, involves political institutions requesting the court to provide an interpretation of the text of the constitution from a real, concrete dispute. The concrete review, as in Germany and Spain, asks the court to deal with a specific case in which a constitutional question is raised. Notwithstanding, there are different approaches by which the separation between the constitutional court and the judiciary has been blurred, as the Constitutional Court can interfere with judicial decisions and participate in the resolution of individual cases, creating conflicts of competence between both bodies (such as amparo in Spain or tutela in Colombia).
Diffuse or dispersed judicial review model: Also called the American model, as it originated from case law of the US Supreme Court (Madbury v. Madison). By this model, judicial constitutional review can be dealt with by any judge or court and under ordinary court proceedings whereby the Supreme or High Court provides uniformity of jurisdiction through the appeals system. Each judge can apply the Constitution in their own way, and the questioned law will not be applied in the case nor subsequent cases, but it is not expelled from the legal system. Canada, Denmark, Estonia, Ireland, Norway, Sweden, the United States and many Latin American countries have adopted this system. Others, such as Colombia, Mexico and Peru, have a mixed system of concrete and diffuse constitutional review.
Source: (OECD, 2022[14]), Constitutions in OECD Countries: A Comparative Study: Background Report in the Context of Chile’s Constitutional Process, https://doi.org/10.1787/ccb3ca1b-en.
The Constitutional Court is responsible for hearing and adjudicating cases in final instance (constitutional matters are first heard in ordinary courts), including those that deny petitions of cases related to civil action against the state; the protection of a person’s freedom from illegal detention; privacy and personal data and the right to access to information of public importance; for cases of violations of individual rights that fall outside the scope of the two previous procedures or cases of authorities or public officials who question their obedience to a legal rule or administrative act.
The Constitutional Court is responsible for passing on judicially, in first instance and without appeal, writs of unconstitutionality concerning laws and regulations that might contravene the Constitution and to hear jurisdictional disputes concerning a public institution that may have exceeded the powers assigned to it under the Constitution, in accordance with the law (Constitution, art. 202). As mentioned above, the process of constitutional review in Peru establishes that the Constitutional Court has the final word on constitutional matters and that judges must interpret and apply the law according to the Constitution and the jurisprudence of the Constitutional Court (art. VI Preliminary Title of the Constitutional Procedures Code).
In some cases, lower court judges have set aside judicial interpretations made by the Constitutional Court (Landa Arroyo, 2006). This has led to the Constitutional Court issuing final judgements that declared these lower court decisions invalid and, in the process, establishing as final and binding its own decisions on all other organs of the state, including the ordinary courts. This means that, in effect, lower courts cannot contradict Constitutional Court decisions and jurisprudence. This has created considerable friction with the lower courts, as some consider that the Constitutional Court has been heavy-handed and has acted in a disproportionate way that could hamper the independence of lower court judges (Espinosa-Saldaña Barrera, 2007[15]; Malpartida Castillo, 2011[16]).
While constitutional unity is necessary, co-ordination mechanisms to discuss and achieve basic consensus on these topics and the willingness of both institutions to work together have been lacking. The CRSJ could be a mechanism that brings both institutions closer. However, in July 2019, the Constitutional Court decided not to participate in it, declaring that it was “autonomous, independent and responsible for the control of the Constitution” (Tribunal Constitucional, 2019[17]).
3.4.2. The National Board of Justice
The JNJ (also called the Junta) is an autonomous institution that oversees the human resource management of the judiciary and the prosecutorial service and is responsible for the selection, appointment, evaluation or performance appraisal and disciplinary actions of judges and prosecutors (Constitution, art. 154; Law 30916, art. 1).
The Junta was established by the Judiciary Reform Commission to replace the National Council of the Magistrature (Consejo Nacional de la Magistratura, CNM) in response to the Callao corruption case within the Peruvian judicial system. More specifically, former President Martin Vizcarra (2018‑20) established a commission with a core mandate to create a comprehensive reform of the justice system, which included the reform of the CNM as one of its first measures (see Chapter 2). The Junta counts seven members; these are selected by a Special Commission composed of the Ombudsperson, the president of the judiciary, the Public Prosecutor, the president of the Constitutional Court, the Comptroller General, a dean from a public university and a dean from a private university, through open public competition for a single non-renewable five-year term. The selection criteria are detailed in the Constitution (arts. 155 and 156) and the Organic Law of the National Board of Justice (Law 30916 from February 2019) and include professional merit and an evaluation of professional competency and knowledge, as assessed by the ad hoc selection special commission. Congress can remove members for gross misconduct before the expiry of the term (Organic Law of the National Board of Justice, art. 6).
The Junta is responsible for the selection and appointment of judges and prosecutors at all levels, except for Justices of the Peace, who are chosen by popular election, following a public competitive examination and personal evaluation (Organic Law of the National Board of Justice, arts. 28-34 and 51[b]). It ratifies whether judges and prosecutors can continue in their positions every seven years and executes their partial performance evaluation or performance appraisal jointly with AMAG every three and a half years. Those not ratified may not re-enter the judiciary or the Public Ministry (Organic Law of the JNJ, arts. 35-40). It is also incumbent upon the JNJ to apply sanctions to judges and prosecutors, which include dismissal/removal, reprimand or suspension (Organic Law of the JNJ, arts. 2 and 42) (see Chapter 4).
Since January 2020, when it launched operations, the Junta has implemented several measures and initiatives, including the restructuring of the institution; the amendment of its regulations regarding its functions, procedures and competence; the revision of appointments, ratifications, evaluations and disciplinary proceedings executed by the former CNM; and the appointment of tenured judges and prosecutors, to reduce the number of provisional judges.
The functions of the Junta require that it communicate constantly with other justice institutions, such as the judiciary, the Public Ministry, and AMAG, to contribute to the promotion of effective justice services.
3.4.3. The Public Ministry or Public Prosecutor’s Office
The Public Ministry, also officially called the Prosecutor’s Office of Peru, is an autonomous constitutional body. It has a representative and independent role in defending those who have seen their rights affected within the national legal system.
The Public Ministry is directed by the National/Public Prosecutor, who is elected by the Board of Supreme Prosecutors for a three-year term and may be re-elected for two additional years (Constitution, art. 158). The Public Ministry or Public Prosecutor’s Office (Fiscalía) is headed by the Public Prosecutor (Fiscal de la Nación), which is the main institution in charge of investigating and prosecuting crimes and protecting the interests of society (Constitution, art. 159). As the hierarchical structure of the judiciary, this body consists of the Public Prosecutor, the Supreme Prosecutors (Fiscales Supremos), the Superior Prosecutors (Fiscales Superiores), the Provincial Prosecutors (Fiscales Provinciales), the Deputy Prosecutors (Fiscales Adjuntos) and the Boards of Prosecutors (Juntas de Fiscales) (Organic Law of the Public Ministry, art. 36; Prosecutors’ Career Law, art. 3).
The Public Ministry has Public Prosecutor’s Offices specialised in violence against women and family members, environmental matters, corruption crimes, organised crimes, money laundering, illicit drug trafficking, human trafficking, fiscal/tax crimes and customs offences.
As seen in Chapter 2, the new Criminal Procedures Code (in force since July 2006 and implemented at the national level in 2021) strengthens the role of the Public Ministry and its prosecutors in criminal proceedings. It places this institution squarely in charge of criminal proceedings as it is now the prosecutor assigned the mandate to conduct criminal investigations (art. 60). Thus, the prosecutor conducts the preparatory investigation, decides the strategy of the investigation and intervenes in all stages of the process (art. 61). To conduct the investigation, the Public Ministry may require the intervention and support of the police (art. 330); it formalises and regulates the co-ordination mechanisms with the police as an institution (art. 69).
The Public Ministry is one of the justice institutions that participates in more inter-institutional co-ordination spaces, which promotes joint work and co-ordination with other justice institutions on topics that require their participation and agreements (e.g. violence against women, the implementation of the new Criminal Procedures Code and their co-ordination with the police in criminal cases). Furthermore, bilateral co‑ordination with other institutions, such as the police, regarding the investigation of cases and specialised crimes has also been implemented, fostering constant and mutual communication, joint work, protocols delimiting responsibilities, articulation and co-ordination, and a better assessment of these issues. In these co-ordination spaces, authorities from the Public Prosecutor's Office and the police participate with decision-making power and lead specialised teams focused on particular crimes (see the section on the national police).
This becomes especially evident in the co-ordination and planning between the Public Ministry and the judiciary on the provision of justice services where, for instance, more Public Prosecutor’s Offices specialised in violence against women were created, thus generating more cases than the courts could handle (and without a corresponding increase in the number of courts needed to hear them). This has impacted the ability to resolve legal needs in an effective and timely manner. The same problem exists between the Public Ministry and the judiciary as more Public Prosecutor’s Offices on environmental issues were created than existing courts to see the cases, which generated a case load that the existing courts are unable to manage. The non-participation of the judiciary in the above-mentioned co-ordination mechanisms may explain part of the issue.
3.4.4. The Ombuds Office
The Ombuds Office (Defensoría del Pueblo) is responsible for defending people’s fundamental constitutional rights. It oversees the state’s administration and performance of its duties and supervises the delivery of public services to citizens (Constitution, art. 162). It is an autonomous body headed by the Ombudsperson (Defensor del Pueblo), whom Congress elects for a five-year term (Constitution, art. 161). Its efficiency depends on the prestige and good image of the Ombuds Office and its advocacy work, as its decisions and recommendations are not binding, and it cannot sanction institutions for non-compliance.
The Ombuds Office is entitled to intervene in constitutional processes; prepares reports on topics within its sphere of competence, including an annual report to Congress; investigates acts and resolutions of the public administration; presents draft legislation before Congress; promotes the signing and ratification of, and accession to, international human rights treaties; and initiates or participates in administrative proceedings in representing a person or group of people for the defence of constitutional and fundamental rights (Organic Law of the Ombuds Office, art. 9) (see Chapters 3 and 4).
This institution organises its work around strategic and thematic areas: public management; human rights and people with disabilities; the environment, public services, and Indigenous populations; constitutional matters; women’s rights; children and adolescents; the fight against corruption, transparency, and the efficiency of the state; and prevention of social conflicts and governability.
Its functions include constant communication with public institutions, including for the provision of recommendations and their follow-up and implementation. The Ombuds Office also co-ordinates with other justice institutions, including the judiciary and the Public Ministry, and supports the provision of mobile services through joint fairs and campaigns.
It has 40 offices at the national level and in all regions and departments of the country. It visits communities and populations in remote places through mobile campaigns, collecting people’s complaints on public administration and public services issues, advising them on their problems or concerns, and building capacity on people’s fundamental rights. It is important to note that a lack of financial resources limits its work in the regions and its capacity to reach local populations in the regions.
This public institution also intervenes in national social conflicts as a mediator, participating in dialogue spaces and providing early warnings and recommendations to the government. This and its advocacy work on protecting and promoting people’s rights has allowed them to have good relationships with diverse groups of vulnerable populations and has strengthened its powers of persuasion with the government (see Chapter 6).
3.5. The executive branch and Peru’s justice system
3.5.1. The Ministry of Justice and Human Rights
As part of the executive branch, the role of the Ministry of Justice and Human Rights (Ministerio de Justicia y Derechos Humanos, MINJUSDH) is, among other things, to promote and disseminate human rights and access to justice, with emphasis on vulnerable populations; formulate policies and proposals of legislation on matters within its jurisdiction; provide the judicial defence of the state and oversee the penitentiary policy (Law of Organisation and Functions of the MINJUSDH, arts. 4-5).
It is headed by a minister, who is supported by a Vice-Ministry of Justice (art. 11) and a Vice-Ministry of Justice and Human Rights and Access to Justice (arts. 7 and 12). The latter is responsible for people’s access to justice, which is promoted through public defence services and ADR mechanisms (see Box 3.5).
Box 3.5. Public defence services and ADR mechanisms
The public defence service is provided by 2 057 public defenders throughout Peru and guarantees the following services: public criminal defence (counsel and sponsorship); the defence of victims (counsel and sponsorship); legal assistance (counsel and sponsorship in civil law and family, labour, administrative law matters) (Public Defence Service Law, art. 6). It also provides other multidisciplinary services, including experts (peritos), social workers and health services. This service is provided in the 34 Public Defence District Directions (Direcciones Distritales de Defensa Pública), located in each one of the judicial districts, and in another 390 offices at the national level, including the 40 free legal assistance centres (Centros de Asistencia Legal Gratuita, ALEGRAs) and 6 mega ALEGRAs. However, as mentioned by the MINJUSDH and other public institutions, the number of public defenders is insufficient considering the number of cases that the public defence service receives [see also (Defensoria del Pueblo, 2022[18])]. The ALEGRAs offer public defence for victims, legal assistance and extrajudicial conciliation services, with 46 at the national level. The mega ALEGRAs offer the same services as the ALEGRAs, as well as multidisciplinary services; there are five in different judicial districts (Lima, Lima East, Callao, Arequipa and Ayacucho). The Fono Alegra 1884 is a free legal assistance line for poor and vulnerable people. Their assistance is mainly related to family matters (child support, alimony, custody, visiting arrangements, paternity recognition, intestate succession, among others) and domestic violence.
Through public criminal defence services, it provides free legal advice and assistance to people who have been investigated, denounced, detained, accused or sentenced in criminal proceedings, as well as to adolescents in conflict with the law, through sponsorships, consultations and free investigations. The public criminal defence and defence of victims’ services are also provided in the Flagrancy Units (Unidades de Flagrancia), which are created to provide fast and co-ordinated services from the police (the detention, custody and investigations), the Public Ministry (leads the investigation, the accusation and forensic medicine), the MINJUSDH (public defence) and the judiciary (the hearing, judgement and the decision) in cases of flagrante delicto (Legislative Decree 1194). There are six functioning Flagrancy Units, four of which are in Lima.
Alternative dispute resolution (ADR) mechanisms refer to the diverse ways people can resolve disputes without going to trial and involve an impartial third party who assists the parties in reaching a resolution satisfactory to both sides. Various ADR methods are used, including conciliation, mediation and arbitration. The ADR process is assessed in Chapter 5. While the Constitution of Peru recognises arbitration as a mechanism for access to justice, constitutions of other Latin American countries, including Mexico, recognise other ADR mechanisms as well, such as conciliation and mediation, defending a broader notion of access to justice and the promotion of these mechanisms (Nylund, 2014[19]). The MINJUSDH, under the Directorate of Extra-judicial Conciliation and Alternative Dispute Resolution Mechanisms, is responsible for implementing ADR mechanisms, which are free of charge to vulnerable sectors of the population, as is the public defence service. The public ADR mechanisms include conciliation, arbitration and popular arbitration and mediation:
Extrajudicial conciliation is conducted by a conciliator. In some civil cases, it is mandatory to start a court proceeding (Conciliation Law, arts. 6 and 9), but disputes relating to the commission of crimes or offences cannot be conciliated. The Directorate authorises and oversees the issuing of education and training courses for conciliators. A conciliation decision, which reflects the will of the parties, is not a jurisdictional act (Conciliation Law, art. 4) but is enforceable through the corresponding enforcement proceeding (Civil Procedures Code, art. 688). The MINJUSDH conducts virtual joint conciliations called Conciliatión. The General Directorate of Public Defence of MINJUSDH manages around 2 821 private conciliation centres, 93 free conciliation centres (including the 40 ALEGRAs and 6 mega ALEGRAs) and 95 extrajudicial conciliators at the national level. The conciliation services can be virtual or in person. The most common cases relate to family issues, especially alimony. Justices of the peace and lawyers’ Justices of the Peace judges can also function as conciliators (Conciliation Law, arts. 33-34).
Mediation is developing as an alternative to prosecution, especially for youth criminality. Since 2018, the MINJUSDH has provided a diversion mechanism from prosecution based on the principle of opportunity and reaching a reparation agreement with the victim of the crime.
Through arbitration, parties decide to solve their conflicts voluntarily, submitting to the decision of an arbitrator or expert tribunal in the matter of the dispute. Arbitration awards are final (Arbitration Legislative Decree, arts. 62-65) and, as in the case of conciliation, decisions are binding and enforceable through an enforcement proceeding (Civil Procedures Code, art. 688). The Directorate of Extra-judicial Conciliation and Alternative Dispute Resolution Mechanisms of the MINJUSDH exercises arbitration roles through the Popular Arbitration Centre (Arbitra Perú) (Supreme Decree 016-2008-JUS), located in Lima, which counts 179 arbitrators, who only hold virtual hearings. The Directorate oversees the National Registry of Arbitrators and Arbitration Centres (Registro Nacional de Arbitros y de Centros de Arbitraje, RENACE) (see Chapters 5 and 6).
The State Attorney’s Office (Procuraduría General del Estado), attached to the MINJUSDH and in existence since 2020, is responsible for “the defence of the state’s interests” (Constitution, art. 47). For this purpose, it, among other things, promotes and guarantees the defence and judicial representation of the state; promotes conflict resolution; and works together with co-operation mechanisms to locate and recover goods, instruments and earnings generated by illegal activities (Legislative Decree 1326, art. 12). The State Attorney is appointed by the President and proposed by the Minister of Justice and Human Rights. There are also national, regional and municipal Procuradurías Públicas, which are the judicial defence organs of the public institutions (art. 25). The Specialised Procuradurías are assigned special crime cases, including illicit drug trafficking, terrorism, money laundering, crimes against public order, corruption, environmental crimes, and in constitutional matters, others that might be created. The Ad Hoc Procuradurías are created for specific cases and are temporary (art. 25). The Lava Jato Ad Hoc Procuraduría has begun prosecuting many Peruvian politicians and officials at the highest levels involved in cases related to the Brazilian construction company Odebrecht, many of which are related to foreign bribery. It has investigated and charged several senior public officials for corruption, including five former presidents, cases that are still ongoing. It has also promoted effective collaboration and reparation agreements for cases it has conducted (OECD, 2021[20]).
It is important to note that other institutions provide public defence and ADR/mediation services. Lawyers from the State Attorney’s Office, part of the MINJUSDH, also provide public defence and representation of the state (Constitution, art. 47) and the executive in court. The Ministry of Women and Vulnerable Populations (Ministerio de la Mujer y Poblaciones Vulnerables, MIMP) provides legal advice and judicial defence services to victims of violence against women in the Women Emergency Centres (Centros de Emergencia Mujer, CEM). The Public Ministry, through the Central Unit of Protection and Assistance of Victims and Witnesses (Unidad Central de Protección y Asistencia a Víctimas y Testigos, UDAVIT) and its district units, provides multidisciplinary assistance to victims and witnesses, including of violence against women, as part of the implementation of the Protection and Assistance of Victims and Witnesses Program. Private arbitration, which does not depend on the MINJUSDH, exists and is financed by its users.
Overall, co-ordination across institutions providing conciliation services regarding both public defence and ADR/mediation appears limited. There are no co-ordination mechanisms on ADR mechanisms, including between the judiciary and the MINJUSDH; this is problematic given that the judiciary ends up enforcing conciliation decisions or allowing the start of a court proceeding when the conciliation was not successful. There also appears to be limited co-ordination capacity between the MINJUSDH and the other institutions in the executive and in the justice system that offer public defence services. This raises important issues relating to the efficiency with which public human and financial resources are expended on public defence services, as well as to the level and quality of the public defence service being delivered to the people who need these services the most (this is illustrated most clearly in the next section on the services provided to battered women – women victims of violence). Finally, the small number of public defenders does not guarantee effective access to justice for vulnerable populations.
3.5.2. The national police
The national police (Policía Nacional del Perú, PNP), which falls under the purview of the Ministry of the Interior (Ministerio del Interior), is considered part of the justice system given its criminal investigation functions:
The PNP is the institution that receives the most citizen complaints through police stations.
The PNP guarantees internal order, public order and public safety; guarantees law enforcement and the protection of public and private property; prevents and investigates crimes and offences; and fights against crime and organised crime (Law of the PNP, art. 3).
It has directorates specialised in specific crimes, including environmental, drug trafficking, terrorism, money laundering, human and migrant trafficking, corruption, tax/fiscal, order and security, state security, people security, transit and transport, and tourism, among others.
The role of the police in investigating a crime is regulated by the Criminal Procedures Code. The police are obliged to support the Public Ministry in undertaking preparatory investigations. The police shall, even on its own initiative, become aware of the crimes, inform the Public Prosecutor, perform urgent proceedings to prevent consequences, identify the perpetrators and secure the evidence (Criminal Procedures Code, Section IV, Chapter II Title I).
Because of the role of the police in the investigation of crimes, the protection of people against illegal acts and their role as first responders to a crime scene, this institution should co-ordinate with the other public institutions that also have a complementing role to play in these topics, which often involve multiple jurisdictions and a range of players. Co-ordination spaces have been identified between the police and other public institutions, such as the judiciary, the Public Ministry, the MINJUSDH and MIMP, on topics related to violence against women and family members (see below on the National System of Justice for the Prevention, Sanction and Eradication of Violence against Women and Family Members, SNEJ), the implementation of the new Criminal Procedures Code, including the investigation of cases.
On the latter, co-ordination between both institutions is important for the effective investigation of crimes and access to justice, as well as coherence between the institutional mandates and arrangements of both entities to deal effectively with the challenges of investigating different crimes. In this regard, it is important to mention that the Public Ministry and the police have offices specialising in the same crimes, except violence against women, which provides better capacity for both institutions to co-ordinate, plan, and work together on investigating crimes. Since violence against women is considered a priority issue by the government, a specialised office or directorate focused on this topic could promote effective co-ordination and access to justice for gender-based violence cases. There has been co-ordination on capacity building and training and joint development of protocols on case analysis by MIMP and the police.
A significant challenge facing the police, impacting effective duty performance, is their relationship with citizens and communities. This is largely due to perceived corruption and mistrust, especially in rural and Indigenous areas. Indeed, 76% of the population is said to mistrust the police (INEI, 2022[21]). Lack of trust can impact the effectiveness of public policies to promote access to justice and security for people. The PNP highlighted language barriers as one of the main challenges they face when consulting with the population and doing their work properly, as most officers do not speak native languages, which not only is an obstacle to people’s access to justice but hampers building trusting relationships with the communities they serve.
3.5.3. The Ministry of Women and Vulnerable Populations and the AURORA Program
MIMP is considered part of the justice system as justice service provider through its National Program for the Prevention and Eradication of Violence against Women and Family Members (Programa Nacional para la Prevención y Erradicación de la Violencia contra las Mujeres e Integrantes del Grupo Familiar, AURORA) (Supreme Decree 018-2019-MIMP). Through this programme, it provides justice services and other specialised services to women and other family members victims of violence (see Box 3.6).
Box 3.6. Services provided by the AURORA Program
The AURORA Program provides the following services:
Women Emergency Centres (CEM): The CEM are free specialised public services that provide comprehensive and multidisciplinary attention to victims of violence against women and family members, including women, children and adolescents, elderly people and people with disabilities (according to Law 30364). The services provided are legal assistance; legal public defence, in co-ordination with the MINJUSDH; psychological attention, in co-ordination with health centres and the Ministry of Health; and social assistance. There are 431 CEM at the national level, 245 of which are in the regional or municipal governments, which, through agreements, provide the physical space to implement them; 184 are in police stations, and 1 is in a health centre.
Hotline 100 (Línea 100): This is a 24-hour free phone call service which provides victims of violence with counselling, orientation, referral to other services and emotional support in Spanish, Quechua and Aymara (native languages).
Chat 100: A 24-hour Internet service through which professionals provide information on violence against women and orientation to women and family members and offer psychological assistance to help identify warning signs and patterns of violence.
Institutional attention centre (Centro de atención institucional, CAI): Its role is to re-educate men who committed acts of violence against women with the support of a multidisciplinary team of psychologists, re-education professionals and social workers. The judiciary might also refer men who have been sentenced or are serving their penalties to these centres.
Urgent attention service (Servicio de atención urgente, SAU): It provides urgent attention to victims wherever they are or where the acts occurred, especially in cases of moderate and grave risk for the victim. The services include those related to access to justice, protection and recovery, provided in articulation with other areas of the MIMP and other institutions.
Rural strategy (Estrategia rural): Sixty-three teams, including mobile and fixed services, that provide prevention, attention and protection services in rural and remote areas and Indigenous communities in all the departments of Peru but Lima. This strategy also trains and strengthens the capacity of the local authorities, local leaders and community organisations on women’s empowerment and mechanisms of violence prevention, pathways and how to respond to cases of violence.
Community temporary shelters (Hogares de Refugio Temporal, HRT): They provide protection, shelter, food and multidisciplinary attention to victims of violence.
Most services, including the Hotline 100, the Chat 100, the urgent attention service and the rural strategy, refer victims to the CEM.
Note: The Ministry of Women and Vulnerable Populations is not strictly considered part of the justice system; however, through the services of the AURORA Program, it provides justice services, such as legal defence to victims of violence.
MIMP oversees the formulation, planning, direction, co-ordination, execution, supervision and evaluation of public policies on women's issues and the promotion and protection of vulnerable populations (Law of Organisation and Functions of the MIMP, Legislative Decree 1098). According to Law 30364 (Law for the Prevention, Sanction and Eradication of Violence against Women and Family Members, from November 2015), it is also the lead agency in the implementation of this law, including the prevention, protection and attention of and to cases of violence, and the co-ordination with the other institutions for its implementation (art. 35).
As seen above, duplication of services on violence against women and family members is widespread, illustrating a lack of effective co-ordination between institutions. These include:
Legal defence services for victims of violence against women and family members, provided by the Public Defence of the MINJUSDH and the CEM.
Legal orientation and advice, provided by several services of the AURORA Program, the Public Defence of the MINJUSDH and UDAVIT of the Public Ministry (see the relevant subsection above on the MINJUSDH).
Multidisciplinary services, including psychological and social services, provided by the AURORA Program, the MINJUSDH in the mega ALEGRAs, UDAVIT of the Public Ministry and the Integrated Modules on violence against women of the judiciary, women legal counsellors from the rural strategy of the AURORA Program and the Commission on Access to Justice of the Judiciary.
Even though these services are not delivered across the country, notably in rural areas, there are duplications of efforts in several parts of the country, with little co-ordination between them, which does not allow them to function as an integrated service system. Rather than services being complementary and mutually reinforcing, they tend to compete for clients. This overlap and duplication are also confusing for users, who have little information about them, and about which service may be more suitable to solve their problems and needs (see Chapter 6).
3.6. Co-ordination and co-operation in the justice system
3.6.1. Co-ordination trends and good practices in OECD Member countries to advance people-centred justice
OECD Member countries have implemented partnerships and co-ordination mechanisms to address specific justice objectives and needs with a whole-of-government approach. This involves the collaboration of different government departments, institutions, and justice agencies and actors across various levels and sectors to deliver comprehensive and integrated services. This approach recognises the interconnectivity of people’s needs. Also, many OECD Member countries incorporate the participation of NGOs, other community organisations, and the private sector in these co-ordination spaces and initiatives. The agencies that take the lead vary from country to country, including the centre of government, finance departments or ministries, or justice departments (OECD, 2021[23]). The OECD Recommendation on Access to Justice and People-Centred Justice Systems [OECD/LEGAL/0498] establishes that the promotion of people-centred justice through whole-of-state and whole-of-society approaches include co-ordination with regional and local governments, justice stakeholders, civil society, and service organisations, including private sector providers
The OECD recommends the establishment of processes and protocols within this co-ordination mechanism to facilitate the collaboration of the different institutions and organisations to deliver whole-of-government services (see Box 3.7 and Box 3.8). The National Specialized System of Justice for the Prevention, Sanction and Eradication of Violence against Women and Family Members (SNEJ) is a successful example of access to justice (see Box 3.11, further below).
Box 3.7. OECD practices of formal, institutionalised co-ordination mechanisms across the justice system
In the United States, the White House Legal Aid Interagency Roundtable (LAIR), with support from the Department of Justice’s Office for Access to Justice, is a co-ordination strategy created in 2012 that brings together 22 US government agencies and works with civil legal aid partners, including NGOs, law schools and the private bar. LAIR discusses and delivers access to justice to vulnerable populations by: 1) leveraging resources to strengthen federal programmes by incorporating legal aid; 2) developing policy recommendations that improve access to justice; 3) facilitating strategic partnerships to achieve enforcement and outreach objectives; and 4) advancing evidence-based research, data collection and analysis (OECD, 2021; White House Legal Aid Interagency Roundtable, 2022).
In Canada, the Access to Justice Secretariat, housed in the Department of Justice, facilitates interaction with other departments to identify ways to anticipate and address the legal and justice needs across different sectors. It works together with a broader range of partners and stakeholders within various sectors, including justice, health, social services and education, and with Indigenous law organisations, courts, legal professionals, legal aid and public legal education and information organisations, academics and front-line services providers (Canada Department of Justice, 2022; OECD, 2021).
Source: (OECD, 2021[23]), OECD Framework and Good Practice Principles for People-Centred Justice, https://doi.org/10.1787/cdc3bde7-en.
Box 3.8. Co-ordination processes and protocols with a whole-of-government approach
Key steps and actions to establish co-ordination processes and protocols with a whole-of-government approach to advancing people-centred justice may include:
Strengthen co-ordination and co-operation mechanisms across government bodies and agencies, as well as levels of government, regional and local governments, public service sectors, and the justice system, including justice stakeholders, service organisations and private sector providers.
Establish and maintain interdepartmental and intergovernmental co-ordinating teams that focus on specific legal, and justice needs or priority groups, including co-ordinating intersectoral action for early detection, anticipation, prevention and rapid response to legal issues.
Establish appropriate financial and resource-sharing mechanisms and facilitate processes to ensure the delivery of the most appropriate mix of services to meet legal and justice needs. Central governments and treasury departments play a key role in developing these mechanisms.
Establish collaborative planning mechanisms to allow services to plan together – incorporating government and community service organisations – to achieve a co-ordinated approach.
Create mechanisms to allow the sharing of information to ensure needs assessment, triage, referral and service provision to people.
Establish, where appropriate, integrated and co-ordinated services, such as health-justice partnerships (integrating legal services with health services providers) and other arrangements.
Ensure the implementation of technological, information technology (IT) and data-sharing mechanisms to ensure a whole-of-government approach and remove barriers to access for all in the community.
Source: (OECD, 2021[23]), OECD Framework and Good Practice Principles for People-Centred Justice, https://doi.org/10.1787/cdc3bde7-en; (OECD, 2023), Recommendation of the Council on Access to Justice and People-Centred Justice Systems, OECD/LEGAL/0498.
Moreover, effective implementation of people-centred justice benefits from engaging and partnering with the private sector and non-governmental institutions to provide legal, justice and related services, which could increase overall sector capacity to meet people’s legal and justice needs. This could be achieved through appropriate financing and investment and enabling infrastructure and environment for private sector development and NGOs’ growth (OECD, 2021[23]).
For instance, in Australia, private practitioners fill gaps or streamline legal assistance in the provision of legal aid services. Depending on each state, legal aid services are being delivered both by “in-house” legal aid lawyers and by private lawyers receiving grants of aid funding to support approved clients. This is especially relevant in regional and remote areas, where, for example, the lack of high population numbers means that sometimes no in-house legal aid providers in the relevant area of law specialisation are available, and so private practitioners need to be engaged (OECD, 2021[23]).
3.6.2. Co-ordination mechanisms in Peru
Co-ordination across the branches of power
The principle of the separation of powers does not imply that the three branches of the state are to operate in complete isolation from each other. Rather, they should engage with one another in full respect of each other’s autonomy. Thus, in Peru, the Constitutional Court, as the main interpreter and guarantor of mandates and relations between the different branches and the constitutional autonomous institutions, has found that the principle of the separation of powers should not be understood in a rigid or absolutist way but should be conceived as a principle that encompasses co-ordination and co-operation between the three powers (Tribunal Constitucional, 2006, STC N 00006-2006-CC). The checks-and-balances principal characterising relations between the powers was found to have been articulated in a way that keeps each power accountable to the people; and not be applied arbitrarily for purely political motives.
That said, while the 1993 Peruvian Constitution does not explicitly entrench inter-branch co-operation and co-ordination, as a principle to promote democracy and protect the human rights of citizens, it does mention co-ordination and co-operation between branches as a means to guarantee constitutional compliance in performing the duties of the state. Hence, the Constitutional Court’s interpretation of these functionalities is broad.
Examples exist in OECD Member countries of constitutional promotion of inter-branch co-operation and co‑ordination in performing the duties of the state. For example, the Constitution of Colombia explicitly recognises the principle of co-operation across the three branches of the state and other public authorities, this principle acts as a constitutional guide in the design and delivery of public policies and services and in relations between state institutions (see Box 3.9).
Box 3.9. The principle of co-operation in Colombia’s Constitution
Article 113 of the Constitution of Colombia states that the branches of the government are the legislative, the executive and the judiciary, and, in addition, there are other autonomous and independent organs and that they “have separate functions but co-operate harmoniously for the realisation of their goals”. Furthermore, Article 209 recognises that the “administrative authorities must co-ordinate their actions for the appropriate fulfilment of the purposes of the state”.
This principle has also been recognised in Law 489 on the Organisation and Functioning of National Entities. Article 6 establishes that according to the principle of co-ordination and collaboration, the administrative authorities should guarantee harmony in the exercise of their functions and that they should collaborate with other institutions.
Source: Constitution of Colombia; Law 489 from 29 December 1998, by which norms are established on the organisation and functioning of national entities, and dispositions, principles and general rules are created for the exercise of the attributions contained in Article 189, Paragraphs 15 and 16 of the Constitution.
Vertical and horizontal co-ordination mechanisms between public institutions and the government
Several generic horizontal and vertical co-ordination mechanisms have been established and have evolved over time in Peru, both horizontally across the executive and beyond and vertically with the lower levels of government.
Horizontal mechanisms linking public entities across the same level of government, at the national level between sectors, and at a decentralised level between regional and local governments) include the Inter-ministerial Commissions (Comisiones Interministeriales), Inter-regional Co-ordination Boards (Juntas de Coordinación Interregional), Decentralised Government Associations, and the co-ordination and articulation of spaces between ministries of the executive power, in which institutions from other branches and autonomous institutions can participate, including the Multisectoral Commissions (Comisiones Multisectoriales) and working groups. These can be temporary or permanent, and civil society organisations can be invited to participate (Presidencia del Consejo de Ministros, 2022[24]).
Vertical mechanisms between entities across levels of government include the Intergovernmental Co-ordination Council, National Councils, and Regional and Local Co-ordination Councils.
However, both iterations of the National Policy on the Modernization of the Public Administration highlight the need to improve availability, efficiency and effectiveness of existing inter-governmental and intersectoral co-ordination mechanisms, including by overcoming siloed approaches to policy and service design and delivery.
In recognition of this need, in 2003 Peru created CERIAJUS to advise on the reform of the justice system (see Chapter 2). In particular, it was to propose a constitutional reform to establish formal co-ordination relationships across the institutions of the justice system as a means to facilitate the design, delivery, monitoring and evaluation of justice reforms, and of justice policy and services more generally. Yet the reforms proposed by CERIAJUS were not pursued due to the absence of a formal institutional co-ordination mechanism to advocate for, design, implement and monitor the implementation of these proposals. Indeed, as discussed in Chapter 2, uneven legislative support to approve reform proposals, limited political leadership from the executive branch to promote them, and ongoing political turbulence have meant that justice reforms have been implemented slowly and in a fragmented way when they have been implemented at all. These reforms require effective communication and co-ordination across institutions to be implemented effectively.
Beyond CERIAJUS, institutional co-ordination challenges have been flagged as problematic in Peru’s first National Policy on the Modernization of the Public Administration (Supreme Decree No. 004-2013-PCM, from 2013) and in its more recent National Policy on the Modernization of the Public Administration (Supreme Decree No. 103-2022-PCM, from 2022), approved by the Presidency of the Council of Ministers (PCM), whose role is to manage the co-ordination of national policies, the modernisation of the public administration and relations with the other branches of the state and institutions (Organic Law of the Executive Power, Law 29158, arts. 17 and 19).
Furthermore, apart from the CRSJ and the SNEJ, no specific co-ordination mechanisms have been established between justice system institutions for people-centred justice policy and services formulation and design, delivery, performance monitoring and evaluation (see section 3.6.8).
When co-ordination arrangements are established, they tend to lack monitoring and evaluation capacity to ensure their effective implementation and functioning.
In response to the co-ordination challenges raised by the two National Policy strategies, more than 400 ad hoc co-ordinating bodies were established within the executive by 2018 (Presidencia del Consejo de Ministros, 2022[24]). This has generated several significant governance challenges, including:
a lack of clarity on the roles and responsibilities of the members
absenteeism and suspension of the meetings due to the unavailability of the tenured member (from the executive branch)
duplication of functions between co-ordination bodies
a lack of monitoring and evaluation of these co-ordination mechanisms by the executive power (Presidencia del Consejo de Ministros, 2022[24]).
There have been attempts to address these challenges, such as re-establishing a Co-ordinating Committee within the PCM to steer intersectoral co-ordination. However, frequent changes in the PCM's senior positions have limited the effectiveness of these mechanisms (Alessandro, Lafuente and Santiso, 2014[5]). Furthermore, the nature of these efforts, as illustrated notably by a lack of prioritisation of what exactly needs to be co-ordinated at any given time through these different mechanisms and the lack of implementation of a systemic approach to whole-of-government co-ordination on the part of the PCM, have helped perpetuate the dysfunctional nature of these co-operation mechanisms (Franco Mayorga, 2018[25]).
Co-ordination and engagement with external stakeholders
Co-ordination with external stakeholders that promotes citizen participation in the policy cycle and in the design and delivery of services is limited in Peru. In this connection, the OECD Recommendation of the Council on Open Government recognises that open government promotes the principles of transparency, integrity, accountability and stakeholders’ participation in support of democracy and inclusive growth. This is crucial to achieving different policy outcomes, improving the evidence base for policy making and reducing implementation costs; it also taps wider networks for innovation in policy making and service delivery (OECD, 2017[26]; 2021[23]).
The Recommendation on Open Government [OECD/LEGAL/0438] establishes that open government involves the participation of the government and citizens as the main stakeholders in the policy cycle and in service design and delivery, including information, consultation and engagement (OECD, 2017[26]; 2022[27]).
The OECD recommends various methods to engage citizens, including open meetings/town hall meetings, public consultations, civic monitoring, participatory budgeting and representative deliberative processes, among others (OECD, 2022[27]).
Citizen participation in justice policy and services design, delivery and evaluation promotes people-centred justice. It ensures social accountability by holding the government accountable, functioning as a watchdog and providing information (OECD, 2021[23]).
According to an analysis carried out by the National Centre for Strategic Planning (Centro Nacional de Planeamiento Estratégico [CEPLAN], part of the PCM), of the 34 national policies approved between 2018 and 2022, only 3% resulted from effective citizen participation, while 6% had no participation and 91% saw limited participation (Centro Nacional de Planeamiento Estratégico, 2023[28]).
The CEPLAN analysis identified four stakeholders: the public sector, organised civil society, non-organised citizens, and the private sector; it also included four levels of participation: informative, consultive, decision making, and co-management. There is effective participation when citizens have decision-making or co‑management involvement, while participation is limited when it is just informative or consultive. Participation is ineffectual if it does not include the population affected by the public problem at the national level (Centro Nacional de Planeamiento Estratégico, 2023[28]).
As noted by CEPLAN, some of the reasons for this limited participation include a fragmented and unequal society; lack of alignment between legal and regulatory frameworks that facilitate citizens’ participation; multiple and non-effective mechanisms and spaces for citizen participation; lack of political will to implement engagement processes in public policy; weak state management and organisation capacity to guarantee it and a weak civil society to demand it; and the state’s lack of knowledge of methods and ways to garner citizen participation and engagement in policies (Centro Nacional de Planeamiento Estratégico, 2023[28]).
The national legal framework does not explicitly recognise or regulate citizen participation in public administration and public policy making. In recent years, some guidelines have been included as part of the public policy cycle and have established elements for its effective implementation; however, the implementation of this process is not regulated, and it depends on the commitment of the public institutions that lead the implementation of a national policy.
The Constitution recognises citizen participation in public administration by stating that people have the right to participate in the nation’s political, economic, social and cultural life (arts. 2-17), in public issues through referendum, legislative initiatives, authorities’ revocation and demand for accountability (art. 31) and in the municipal government (arts. 31 and 197).
The Organic Law of the Executive Power (Law 29159) recognises the principle of participation and transparency, by which people have the right to monitor and participate in the management of the executive and have access to information (art. IV); however, it does not further develop this principle, neither does it explicitly recognise citizens’ participation in public policy.
Some regulations and guidelines that regulate public administration and the cycle of national policies include some elements for effective citizen participation in public policy processes (Guideline of National Policies, Resolution 0030-2023/CEPLAN/PCD, from 2023; and the National Policy on Public Management Modernization), but do not regulate this process.
That said, citizen participation in public administration is explicitly recognised in the laws that promote the decentralisation of the government. These include the Decentralisation Law (Ley de Bases de la Descentralización, Law 27783, from 2022), the Organic Law of Regional Governments (Law 27867, from 2002) and the Organic Law of Municipalities (Law 27972, from 2003). Furthermore, the Prior Consultation Law (Law 29785) regulates the law of prior consultation of the Indigenous communities.
In the justice area, the government has not implemented an approach of engagement or partnership with non-governmental and private sector providers to develop and provide legal, justice, and related services. Partnerships for the provision of related services as community centres are implemented with local governments. The government could benefit from this kind of co-ordination and partnership for the provision of justice services, such as legal counsel and representation, conciliation and other ADR services.
3.6.3. Co-ordination mechanisms to promote people-centred justice in Peru
Justice policies and services in Peru are designed and executed within a complex and fragmented institutional landscape with limited clarity of roles in the delivery of people-centred justice. Many public institutions have competencies on different justice issues, and some of them potentially have overlapping or closely related responsibilities in terms of legal counsel, legal representation, multidisciplinary-related services, training and capacity building. Peru has also yet to adopt an institutional architecture that effectively sustains co-ordination for integrated coherent justice policy and service design and delivery, including effective co-ordination mechanisms across the public sector.
In recognition of the importance of co-ordination, Peru is taking steps to design a range of mechanisms. For example, some protocols and guidelines exist to facilitate the working together of some institutions that provide similar or complementary justice services. These include, for example, the Action Protocol between the CEM and the Public Defence services (provided by the MINJUSDH) or the Protocol on the Performance in Judicial Processes that involve members of peasant patrols or native communities. Yet, a report of the Ombuds Office still highlighted limited co-ordination between the public defenders and the CEM in cases of violence against women, as established in the Action Protocol between the CEM and the Public Defence (Defensoría del Pueblo, 2020[29]). Furthermore, stakeholders noted that the implementation of these regulations should be strengthened and that co-ordination between institutions could be improved.
More broadly, Peru could benefit from adopting a clear and system-wide institutional and planning architecture that includes definition of clear roles and responsibilities of different institutions, and effective co-ordination, accountability, planning and oversight mechanisms for the delivery of legal and justice services. There are some existing initiatives that can provide a foundation for these efforts. For example, although the CRSJ was not intended to engage in detailed service delivery coordination and planning, it could be a good starting platform to co-ordinate the alignment of policy objectives and institutions’ responsibilities to advance people-centred justice. Likewise, the Public Policy for the Reform of the Justice System could also play a useful role in this regard, as it has as one of its main objectives to guarantee access to justice to all and across the country, including for the most vulnerable, and approaches this from the point of view of unsatisfied legal needs and the creation or updating of justice services toward this aim (see Chapter 2). Importantly, MINJUSDH could play a leading role in the implementation of such mechanisms. This would likely require a strategic rebalancing effort accompanied by strengthening key system wide planning and co-ordination responsibilities and resources to the MINJUSDH (see Chapter 6).
Co-ordination within the justice system in Peru: The example of the National System of Justice for the Prevention, Sanction and Eradication of Violence against Women and Family Members
In broad terms, in Peru, co-ordination across institutions within the justice sector and with institutions from other sectors or other levels of government is, in most instances, conducted through the general co-ordination mechanisms mentioned in the previous section (e.g. the development and implementation of policies, programmes and initiatives). Some of the most frequent mechanisms are multisectoral commissions and working groups, chaired by the executive (on justice issues by the MINJUSDH). Co‑ordination across levels of government is pursued through local representatives and offices of the national public institutions. Besides these existing mechanisms or the creation of specific co-ordination bodies by law to implement specific policies or co-ordination functions that may be added to specific institutions’ regulations, there is little information from stakeholders on other co-ordination practices between these institutions.
Specifically in violence against women, the Law 30364 (Law to Prevent, Sanction and Eradicate Violence against Women and Family Members, from November 2015) established a specific co-ordination mechanism involving different institutions from different sectors and levels. This mechanism consists of two co-ordination bodies that form the National System for the Prevention, Sanction and Eradication of Violence against Women and Family Members, and whose purpose is to co-ordinate, plan, organise and execute integrated and coherent action plans to implement the law. The most important body in this National System is the High-Level Multisectoral Commission (Comisión Multisectorial de Alto Nivel, CMAN). It meets periodically to approve action strategies, follow up and monitor the national plans, and co-ordinate with MEF to allocate the budget to the different sectors to implement the law. It has a whole-of-government approach, chaired by the MIMP, and composed by the Ministries of the Interior, Justice and Human Rights, Education, Health, Labour and Employment Promotion, Culture and Defence. The Public Ministry, the judiciary, and the Ombuds Office are also part of it.
The Regional, Provincial and District Consultation Mechanisms (Instancias regional, provincial y distrital de concertación) are regional and local co-ordination bodies at various levels of government, whose purpose is to develop, implement, monitor and evaluate at the local level the implementation of the law. These consultation mechanisms are integrated within the local representatives from offices or bodies from the public institutions of the High-Level Multisectoral Commission, the local governments, representatives from civil society organisations and Indigenous peoples’ organisations.
In addition, and within the implementation of this law on violence against women and family members, the National Specialized System of Justice for the Prevention, Sanction and Eradication of Violence against Women and Family Members (Sistema Nacional Especializado de Justicia para la Prevención, Sanción y Erradicación de la Violencia contra las Mujeres y los Integrantes del Grupo Familiar, SNEJ) was created as a specialised co‑ordination mechanism regarding justice issues and with the participation of institutions of the justice system (see Box 3.10).
Box 3.10. Co-ordination mechanism on violence against women: The National Specialised System of Justice for the Prevention, Sanction and Eradication of Violence against Women and Family Members (2018)
The SNEJ was created in July 2018 to implement Law 30364 (Law to Prevent, Sanction and Eradicate Violence against Women and Family Members, from November 2015) concerning protection measures, precautionary measures and criminal proceedings. The judiciary, the Public Ministry, the national police, the MINJUSDH, and MIMP are part of this specialised system, where the Ombuds Office also participates as a guest. There is no participation of civil society organisations, community groups or private actors.
The SNEJ pursued a National Implementation Strategy 2016-2021 (Supreme Decree No. 011-2021-MIMP). To implement Law 30364, in 2019, a temporary Multisectoral Working Group was created, where the PCM, the Ministries of Economy, Development and Social Inclusion, Health, Education, Women and Vulnerable Populations, Work and Employment Promotion, Culture, Justice and Human Rights, Interior, and as guests, the Public Ministry, the judiciary and the Ombuds Office participated and designed a Results-oriented Budgeting Programme for the Reduction of Violence against Women (Programa Presupuestal Orientado a Resultados de Reducción de la Violencia contra la Mujer, PPoR) (Resolución Suprema No. 024-2019-EF from 30 December 2019) with its own financial resources. The SNEJ is part of and responsible for the implementation of some products of this PPoR regarding justice services for women victims and protection measures. This is established through collaborative planning between the institutions. The SNEJ shares information with the public about the SNEJ, the services provided and progress in the implementation via a webpage. However, the information is not updated.
The SNEJ has only been implemented in 8 judicial districts out of the 35. In these, there are Integrated Modules of protection and sanction on violence against women (from the judiciary), Public Prosecutor’s Offices specialised in violence against women (from the Public Ministry), CEM (from MIMP), and public defenders specialised in violence against women (from the MINJUSDH).
Some achievements
Some 3 064 officials received capacity building during 2020 and 2021 (47.9% were judges, 80.7% were jurisdictional personnel, 55.8% were multidisciplinary teams, and 15.5% were administrative and technical personnel).
From the 22 specialised jurisdictional bodies/modules on violence against women and family members, Integrated modules of protection and sanction on violence against women and family members have been implemented in 8 judicial districts as part of the PPoR. In these modules, there are family judges specialised in violence against women and family members, who provide protection measures and sanctions. These are better equipped than the normal jurisdictional bodies and have multidisciplinary teams, including psychology and health services, and social assistance.
The approval of the Protocol “The granting of protection and precautionary measures of the Law 30364” (Administrative Resolution 071-2022-CE-PJ).
The implementation of the Registry of Victims and Perpetrators (Registro Único de Víctimas y Personas Agresoras, RUVA) in eight judicial districts, which allows the judiciary, the Public Ministry, the police and MIMP to interoperate, integrate and articulate with the aim of consolidating information during investigations of cases of violence.
There are 29 Public Defence District Directions (in 29 judicial districts) with public defenders specialising in violence against women and providing legal assistance and victims’ defence.
There are 431 CEM at the national level and in all judicial districts.
There are Public Prosecutor’s Offices specialising in violence against women and family members in 21 judicial districts.
Source: Supreme Resolution No. 024-2019-EF that approves the PPoR, from 30 December 2019; Legislative Decree No. 1368 that creates the SNEJ, from 27 July 2018; Digital Platform of the State (Plataforma Digital Única del Estado), https://www.gob.pe/.
Even though the creation of the SNEJ is a step in the right direction, according to stakeholders, this system also reportedly generated duplication and incoherence in terms of roles and services. For instance, despite joint strategic planning between the institutions, and more Public Prosecutor’s Offices specialised in violence against women were created, this was not accompanied by a subsequent increase in courts and public defenders. This created a situation in which more cases were generated than the courts could manage, and more Public Prosecutor’s Offices and courts were created than public defenders could use to manage their caseloads in this area. Some overlaps were also identified, such as justice-related multidisciplinary services for women victims of violence, which the MINJUSDH provides through the Public Defence offices, the ALEGRAs, and the CEM in police stations and municipalities. As such, there is clear scope for the SNEJ to strengthen its co-ordination processes to reduce overlap and duplication and streamline caseload management. Furthermore, effective communication and co‑ordination is required to implement the SNEJ in all 35 judicial districts.
Other initiatives undertaken by the institutions part of the SNEJ have been implemented to give effect to this law across sectors. Some examples include the Interoperability Plan between the Judiciary and the Family Specialized Police Stations of the National Police of Peru (Plan de Interoperabilidad entre el Poder Judicial y las Comisarías especializadas de familia de la Policía Nacional del Perú), a digital interoperable system linking police stations and the family courts at the national level and the implementation by the judiciary with the support of the police of the “panic button”, which allows people with protection measures to contact the police so they can provide timely relief and assistance in case of danger (see Chapter 6). Furthermore, the SNEJ could benefit from the implementation of a whole-of-society approach and promote the participation of external stakeholders, either at the national or regional/local levels, which means that citizens participate in the design, delivery, monitoring or evaluation of the justice services provided by the SNEJ, including by the AURORA Program. This could promote and strengthen social accountability as a key element to ensure the efficiency and effectiveness of the SNEJ.
According to the law, some civil society organisations can participate in the SNEJ (on implementing Law 30364). Citizen participation is considered at the regional/local levels but not at the national level, and it does not mention the participation of other stakeholders, such as the private sector, community groups, or academia, limiting the approach of citizen participation.
However, even though the role of the local co-ordination mechanisms is the promotion of policies, plans and other initiatives on the topic and informing the national commission (among others), it could play a role in the design, delivery, monitoring and evaluation of policies and services, promoting and improving the effectiveness of the participation of non-governmental stakeholders.
3.6.4. Judicial control over the administration
Judicial control trends in OECD Member countries
The notion that all public authorities are subject to and operate under the law is widely understood across all OECD Member countries and modern democracies to constitute a critical condition to ensure the rule of law. In this regard, a well-functioning justice system governing the public administration, which refers to judicial control over and review of executive branch decisions, is an essential element of good governance, helping executive branches perform better, lawfully and accountably. It helps protect both the public interest by preserving the legal order and individuals' private interests by protecting their rights and interests from abuse.
Judicial control and review can help control the legality of administrative decisions. It also ensures that public authorities are effectively subjected to the law and protects the rights of individuals. Judicial control systems differ across OECD Member countries, shaped by each country’s culture and political history. That said, increasing similarities have emerged over time, with countries borrowing elements from each other in a constant interactive process.
In most European OECD Member countries, the process of building judicial control over the administration dates to the 19th century. Some European countries set up a sort of independent judicial review of the administration as a mechanism to give effect to the principle of the separation of powers between the executive and the judiciary:
In France, this occurred with the creation of the Conseil d’État (1799-1806). Similar institutions responsible for administrative justice were set up in Belgium (1831), Italy (1865), Spain (1845), Portugal (1875), Türkiye (1868) and several Länders in Germany (between 1819 and 1900).
Austria created in 1875 a single administrative court for the whole Austro-Hungarian Empire.
In the United Kingdom, this function was fulfilled to a limited extent by the Westminster courts.
Supranational judicial systems such as the Inter-American Court of Human Rights, the European Court of Justice, and the European Court of Human Rights have also decisively contributed to harmonising administrative justice across borders by initiating actions conducive to the emergence of an international administrative law framework.
In most OECD Member countries, administrative justice (which regulates the disputes between an individual, the state or a public administration) falls within the judiciary (Woehrling, 2009[30]). This approach underlines the organisational and functional separation between administrative actions and judicial control (as recommended by art. 6 of the European Convention on Human Rights and by the European Court of Human Rights). Some countries have established a separate administrative jurisdiction (most of them are called administrative courts), and others have integrated these functions into the general judicial system (e.g., Norway) or do not have administrative courts at all (e.g., Denmark). In Norway, for example, administrative cases are treated as civil cases and are, as such, subject to the court’s jurisdiction. Likewise, Denmark has no administrative courts. In Denmark, administrative questions are subject to judicial review by the courts at any level.
For countries with separate specialised administrative jurisdictions, two strands appear:
One is based on specialising certain courts of general jurisdiction in judicial control over the administration (e.g., in the Netherlands, Spain, the United Kingdom and the United States; Peru could also be included in this group, to a certain extent). These courts remain within the general statutory and organisational system of the judiciary. Under this model, there are often specialised judges responsible for administrative litigation, specialised chambers in general law courts, special administrative appeals commissions with judicial functions, or other types of bodies specialised in administrative litigations.
Another strand recognises that administrative justice jurisdiction fundamentally differs from the general judiciary and places it as a separate organisation within the justice system (found in Austria, Finland, France, Germany, Greece, Italy, Portugal and Sweden).
Nevertheless, no OECD Member country brings all the litigation involving public administration before specialised administrative jurisdictions. In some cases, economic or patrimonial activities of the administration, as well as lawsuits seeking compensation of tort (compensation for personal injury and damage to property), fall under the purview of civil law courts.
The definition of public law litigation is also varied. Depending on the country, social assistance or social security measures come under either administrative or private law litigation.
Judicial control in Peru
In Peru, the judicial control of public authorities through a system of administrative justice is recent. The first law regulating administrative justice proceedings was enacted on 15 April 2002 (Law 27584). Since then, the notion of administrative justice has evolved in Peru and has generated an emerging specialised jurisdictional order. The current legal framework on administrative justice includes the main elements that enable individuals and corporations to challenge administrative decisions. Yet, the intervention of the Public Prosecutor is still mandated by arts. 159-163 of the Constitution to represent society in legal proceedings when referring to fundamental rights. As noted in the previous section, this can potentially lead to abuse and arbitrariness. One of the most concrete implications of this duality is that administrative justice has been viewed as a more tedious and complex alternative to constitutional justice, especially for cases related to human rights violations, which has limited the development of administrative justice in Peru (Vivas and Javier, 2020[31]).
Three main reasons could explain why Peruvians turn to constitutional amparo instead of the administrative justice framework when defending their fundamental rights:
Effectiveness: The length and delays, since administrative justice has not been developed as a full jurisdiction, explain in part why citizens choose the constitutional justice framework to protect their rights.
Obligation of justice remedies: In constitutional proceedings, the plaintiff is not obliged to exhaust administrative remedies prior to lodging a complaint in court. Interim relief measures are limited, whereas in administrative disputes, they can be more easily requested but not necessarily awarded. The plaintiff is little concerned with bringing evidence to court, whereas, in administrative justice proceedings, the applicant shall provide sufficient evidence to sustain its application.
Sentences of full reinstatement of rights and interests: Sentences produced in constitutional proceedings create compulsory jurisprudence and are published in the Official Gazette (El Peruano), whereas sentences in administrative proceedings are not always made public.
Indeed, it was Peru’s Constitutional Court that, in 2005, deflected landmark cases from constitutional amparo towards the nascent administrative justice. These cases dealt with pension rights, public employment and municipal disputes, which, according to a report of the Ombuds Office, still represent the bulk of administrative cases: 67% of them are disputes on pensions; public employment disputes represent 12% of cases; and the other 21% are miscellaneous cases, such as municipal building permits, taxation, transports, public order, etc. (Defensoría del Pueblo, 2007[32]).
The deflection of pension cases from the constitutional amparo procedure to the administrative justice flooded the ordinary courts with pension-related cases; these courts were unprepared for the development of administrative justice and may have contributed to a significant backlog of cases. The development of administrative justice seems to have mostly been focused on cases of annulment or implementation of administrative acts, but almost no cases on liabilities of public bodies and recognition and repair of individual rights violations (Vivas and Javier, 2020[31]).
Administrative justice provides for the annulment of the piece of offending legislation, as opposed to the restoration of a violated right, which would be the applicant’s preferred outcome. The public administration body is not obliged to forward the administrative dossier to the court and, if requested to do so, faces no consequences in cases where it ignores such a request. This creates an imbalance between the parties to the administrative litigation, favouring the public administrative institution over the applicant.
Peru could benefit from considering and further developing administrative justice as a full jurisdiction. This may help explain, in part, citizens’ preference to use the constitutional amparo rather than the administrative justice channel when addressing human rights issues.
Matters excluded from judicial review in administrative justice in Peru
In addition to the issues identified above, key elements in Peru’s justice framework are, in fact, excluded from the purview of the administrative justice framework, which is not the case in Member countries, as seen below.
First, public procurement contracts for the acquisition of goods, services and concessions are not challengeable under the administrative justice framework (contentious-administrative procedure). In Peru, the legal framework on public procurement mandates that public bodies entering public procurement contracts shall agree to arbitration or conciliation mechanisms with their contractors or concessionaires to settle conflicts (art. 52 of the Ley de Contrataciones del Estado).
This provision represents an exception to the constitutional principle of exclusivity of administrative justice in controlling the acts of the public administration and has been validated by the Constitutional Court (art. 193). Expropriations and compulsory purchases can also be subjected to voluntary arbitration or the judicial system (art. 70).
As stated in the Constitution, decisions of the National Election Board concerning election matters are not subject to review, nor are those of the National Board of Justice regarding the evaluation and ratification of judges (art.142).
In relation to electoral matters, there is no legal provision in the Peruvian legal order defining precisely what electoral matters are. Consequently, all issues arising from an electoral process are deemed unchallengeable before ordinary courts. This provision obliges those affected by the decisions of either body to use the amparo process rather than the administrative justice framework.
This represents a departure from practice in OECD Member countries. For instance, deflecting all electoral matters to constitutional justice under the banner of the protection of fundamental rights is problematic because the National Election Board is first an autonomous public administration body whose decisions should be challengeable under the administrative justice framework and then reviewed by the Constitutional Court if there appears to be some fundamental constitutional rights affected. This is the standard practice in most European OECD Member countries (Venice Commission, 2020[33]).
There are countries allowing electoral complaints before the Constitutional Court or an equivalent body in the first and final instance. In electoral matters, as in other fields, the judiciary, including a specialised electoral jurisdiction, guarantees the complete process's impartiality if it offers enough guarantees of independence decisions on complaints and appeals in the electoral field. This can be explained by the necessity to issue a swift decision. Apart from such cases, the composition of the body deciding on complaints and appeals in electoral matters should preferably be collegial. Moreover, the Venice Commission regularly recommended providing clear and consistent complaints and appeals procedures to avoid any conflicts of jurisdiction.
Constitutional justice vs administrative justice in protecting the rights of citizens
As seen in Chapter 3, the Constitution of Peru establishes constitutional procedures for protecting individual rights and for the abstract control of the constitutionality of laws and regulations. However, constitutional proceedings related to protecting individual human rights may overlap with administrative justice as there is no national – whole-of-the-territory – judicial jurisdiction to protect individual rights, which can confuse citizens. For example, in Lima and El Callao, these proceedings are assigned to specialised judges in public law. In other judicial districts, criminal courts exercise authority over these proceedings, and they fall under the purview of the civil courts. In this context, Peru could benefit from re-appraising the respective roles of administrative and constitutional justice.
3.6.5. The implementation of judicial decisions against public authorities
Judicial decision implementation: Trends in OECD Member countries
An important indicator of the quality of judicial control is the extent to which a judicial ruling against a public institution is guaranteed and effectively implemented. Indeed, as detailed in the Council of Europe recommendation, in cases of non-implementation of a judicial decision by an administrative authority, an appropriate procedure should be implemented to seek execution of that decision through an injunction or a coercive fine (Council of Europe, 2003[34]). This implies that governments are responsible for ensuring administrative authorities are held accountable for cases in which they refuse or neglect to implement judicial decisions.
In most OECD Member countries, the court has substitutive powers over the administration: they can step in and provide administrative action so judgements with substitutive content will take effect in the administrative body. At a minimum, courts can invalidate the unlawful administrative act and instruct the administrative authority to create a new one in conformity with the law. Courts also tend to oblige the administrative authority to act when it shows passivity before an appellation or request. However, the nature and scope of substitutive powers vary across countries. Most countries have some degree of substitutive decision making as part of the powers conferred on their administrative courts. This power is circumscribed to differing degrees depending on the country. For example, Belgium, Canada, Finland, Ireland, Norway, Poland, and the United Kingdom preclude any form of substitutive decision making of the courts on administrative matters. In France, the claimant can request from any administrative court the issuing of injunctions for an administrative body to comply with the judicial ruling, but the judge cannot replace the administration in operationalising the implementation of the ruling.
Implementation of judicial decisions against public authorities in Peru
In Peru, the responsibility for overseeing the implementation of a judicial ruling is assigned to the judge who issued the sentence. This means that the most senior official in the hierarchy of the offending public institution is deemed to be the official legally responsible for executing the judicial ruling but may delegate its implementation to a civil servant. In addition, the resignation, dismissal or termination of the service of the senior official does not exempt this official from the obligation and corresponding liabilities for non-compliance. The judge shall clearly specify who is the addressee, who is obliged to implement the ruling, who is the civil servant in charge, the deadline to implement it and the conditions under which the obligations imposed under the ruling will be considered to have been met (Civil Procedural Code, consolidated text of 2022, art. 122).
Despite these statements of principle, several obstacles can limit the effective implementation of judicial rulings in Peru (Defensoría del Pueblo, 2007[32]):
First, the budget legislation requires that the expenditure for paying for the sentence be foreseen in the budget, and often it is not.
Second, regulations governing whether public goods can be seized and auctioned to pay the public debt resulting from a ruling remain unclear; furthermore, in such a ruling, the question of which public goods may be seized also remains unclear.
Finally, a simple, speedy procedure to execute monetary sentences against public bodies is non-existent.
The result is that a ruling issued by a court in a contentious administrative procedure may remain unimplemented for many years and could even remain so forever. Indeed, the Ombuds Office reports that 7% of complaints refer to lack of implementation of judicial rulings (Defensoría del Pueblo, 2007[32]). Public institutions regularly refer to the lack of budget apportionment to explain the non-execution of payment resulting from a judicial sentence. The Ombuds Office, in its Report 121 of 7 June 2007, suggested several measures that have yet to be considered by the executive and legislative branches. Some academics and practitioners have raised concerns over the difficulties of implementing judicial rulings against public institutions (Fox Velarde, M. A., 2021[35]).
3.7. Summary assessment
The Peruvian justice system comprises many institutions whose roles and justice functions and services have not been clearly defined. This, together with the shortage of effective communication and co‑ordination across institutions, has led to considerable overlaps in mandates, services and initiatives implemented, with limited clarity in allocation of resources or staff. Improving clarity in roles and justice functions and services could avoid confusion among users regarding services and pathways, so they know where to go or to whom to refer to prevent legal issues and seek their resolution. Most importantly, it could further improve the efficiency in resource allocation (public funds that could be used to fulfil other important needs) and the delivery of justice services.
The fragmented nature of the Peruvian justice system also leads to a compartmented approach to law enforcement, in which the institutions work as separate entities with little co-ordination between them in implementing 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 people’s justice needs. This issue reflects the broader challenges associated with a fragmented yet highly centralised state, which in recent years has operated in a context of political instability. Improving stability could facilitate the effective implementation of justice reforms.
There have been some positive examples of co-ordination mechanisms in areas such as violence against women and family members, which was defined as a priority by the government and led to the direct allocation of resources for their implementation. However, this example notwithstanding, inter-institutional co-ordination could benefit from a clear political commitment and leverage, the necessary authority for decision making in existing co-ordination structures, and the commitment and participation of a leader agency to manage co-ordination processes.
As seen in Chapter 2, most of the justice reform efforts reveal a primary focus on the judiciary and its needs, which could mean less focus is given to non-court-based services and processes, which can address many legal needs (see Chapter 6). There is scope to address this structural imbalance (see Chapter 4), including via empowering MINJUSDH to lead the planning and co-ordination of justice services and reforms for a people-centred system of providing access to justice.
In Peru, a clear and integrated people-centred approach to justice has also yet to be applied. In addition, Peru has yet to design and pursue a sector-wide planning process that co-ordinates and monitors the delivery of legal services. Rather, separate, independent and fragmented planning appears to occur. As noted, the MINJUSDH could be mandated to take on more responsibility for leading the process with the support of proper funding (see Chapter 4) to avoid complex service design and delivery that breed overlaps and duplication. Implementing the Public Policy for the Reform of the Justice System through the co-ordination of the CRSJ could be a good starting point for co-ordinating and aligning policy objectives and institutions’ responsibilities and implementation of services to advance people-centred justice in Peru.
Finally, administrative justice is still underdeveloped and tends to be overshadowed by the system of constitutional justice, which limits its capacity to represent a true legality control of the administrative acts of public authorities and an effective protection of individual rights. These gaps can represent deterrents to investment and economic development in Peru. In addition, it appears that administrative justice is still to be developed as a full jurisdiction, which may help explain citizens’ preference to use the constitutional amparo when both proceedings are open to them rather than administrative justice channels to have their rights protected. Importantly, there is scope to reconsider the inclusion of public procurement and election-related matters as part of judicial review through the administrative justice system, in line with practices in many OECD Member countries.
3.8. Recommendations
In light of the above, Peru could consider implementing the following recommendations:
3.8.1. 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. To facilitate the implementation of this recommendation, Peru may consider:
Better defining and regulating constitutional checks and balances to ensure a healthy and functioning justice system. Protecting Peru’s balance of powers and accountability would reduce risk of misuse of the existing constitutional tools, reduce political instability and guarantee the independence of the justice system.
Ensuring that the Constitutional Court plays a key role in interpreting the Constitution in this matter and promoting governability and democracy.
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. To facilitate the implement of this recommendation Peru may consider:
Empowering the Ministry of Justice and Human Rights (MINJUSDH) to lead and promote the design and implementation of access to justice policies with a people-centred approach. In addition, strengthening the role, commitment and capacity in the implementation and leadership of coordination mechanisms for the implementation of these policies. This includes the CRSJ. This may include resourcing the MINJUSDH to improve the skills and capability of its staff to progressively take on the leadership role across the sector.
Consider increasing the budgetary allocation to the MINJUSDH with a view to strengthening its capacity to lead system-wide justice reforms. Adequate resourcing will be important for the executive to lead and co-ordinate across the branches of powers and other actors of the justice system all existing and future justice system reforms and initiatives, including a transition to a people-centred justice system.
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. To facilitate the implementation of this recommendation Peru may consider:
Designing and implementing co-ordination mechanisms that focus on specific objectives and justice needs with a whole-of-government approach. To facilitate co-ordination between institutions, strengthen and consolidate processes and protocols that define co-ordinating teams that focus on specific legal and justice needs or priority groups, appropriate financial and resource-sharing mechanisms to ensure the delivery of services, collaborative planning mechanisms to achieve a co-ordinated and integrated approach, mechanisms that allow sharing of information, integrated and co-ordinated multidisciplinary services, and the implementation of technology, IT and data-sharing mechanisms.
Defining a clear co-ordination mechanism led by the MINJUSDH to design, lead and implement the elements of the people-centred justice system in Peru. This could be implemented in the context of the Public Policy for the Reform of the Justice System. This could fall under the responsibility of the MINJUSDH to establish or enhance service-level planning and co-ordination mechanisms to facilitate co-ordination and information-sharing strategies and mechanisms.
3.8.2. Medium/long-term recommendations
Strengthening the capacity of the relevant agency within the Presidency of the Council of Ministers. This could be done in the promotion, design, follow-up, monitoring and evaluation of existing and future co-ordination mechanisms and may include its active participation in the co‑ordination mechanism cycle and the monitoring of agreements, tasks, progress and challenges, as well as in the institutional promotion of a “culture” of co-ordination for the implementation of policies and services. The political instability and the changes in senior positions of the institutions should not limit the functioning and effectiveness of these mechanisms.
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. To facilitate the implementation of this recommendation Peru may consider:
Further developing judicial control over public authorities. A more robust system of administrative justice would entail that administrative acts are subject to judicial review, including on public procurement and electoral administration. By administrative act, it is understood that any act, both individual and normative, and factual acts made by administrative authorities in exercising public power may affect the rights or interests of natural or legal persons. 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 administrative justice and fall under the jurisdiction of the Constitutional Court.
Better regulating the jurisdiction of administrative justice and that of the Constitutional Court by giving a more active and broader role to administrative justice on ordinary litigation of individuals and corporations with the public authorities and reserving only the truly constitutional cases to the Constitutional Court. Further reduce or remove the participation of prosecutors in administrative justice litigation.
Granting the power to administrative justice organs to redress unlawful administrative acts. This could be done through interim relief (interim suspension of the effects of an administrative decision) and reinstating the factual and legal situation prior to the unlawful administrative act (full jurisdiction), including monetary compensation for damages or loss of property. At a minimum, the court should be empowered to quash the unlawful administrative act and instruct the administrative authority to dictate a new one that conforms with the law (sheer protection of legality). The court should also be able to oblige the administrative authority to act when it shows passivity in front of an application or request. The execution of the court’s rulings should be guaranteed, including through the crime of contempt of court. Unnecessary obstacles for the execution of judicial rulings against public authorities (e.g. claiming budgetary legality as an excuse) should be removed from legislation. Judges and courts must have mechanisms at their disposal that are sufficient for enforcing their rulings in front of public authorities.
Enhance mutual knowledge and co-operation between formal and Indigenous and intercultural justice; clearly define in law, in full consultation with Indigenous groups, the judicial 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. To implement this recommendation Peru may consider:
Implementing co-ordination mechanisms that promote access to formal, Indigenous and intercultural justice. This includes the regional and local levels between the local actors and institutions that promote access to formal, Indigenous and intercultural justice to promote both jurisdictions' co-existence, respect and effective implementation. At the regional level, this includes, among others, the judiciary, the National Office of Peace and Indigenous Justice (ONAJUP) and Local Offices in Charge of Supporting Peace Justice (ODAJUP), Justices of the Peace, the MINJUSDH, the peasant patrols or other community justice actors, the Public Prosecutor’s Office, the police, the regional and local governments, and civil society.
At the local level, implementing co-ordination mechanisms between Justices of the Peace and the peasant patrols or other community justice actors, and other justice institutions, such as the police, to articulate and work together on providing access to justice for Indigenous and native people in particular cases, including the resolution of conflicts between both jurisdictions and the enforcement of decisions.
Providing capacity building to justice delivery officials, including judges, Justices of the Peace, the police, public prosecutors on Indigenous and intercultural justice and the respect of this jurisdiction; and peasant patrols (rondas campesinas) and other community justice actors on human and fundamental rights, the Constitution and formal justice.
Investing in training police officers on human and fundamental rights (including Indigenous, environmental and gender-related rights and specifically related procedures) and implementing actions to build trusting relationships with the population, including effective and people-oriented access to justice services. National stakeholders could consider the design and implementation of a national plan.
Expand the strategic scope of the justice system to embrace a people-centred approach. To implement this recommendation Peru may consider:
Considering strengthening the implementation of a people-centred justice system and access to justice as a human right. Key members of the justice system demonstrate a solid commitment to the constitutional, legal and institutional mandates they have been given. However, work needs to be done to ensure these mandates become “people-centred”. Adapting these mandates to be more people-centred will, over time, see the progressive shifting of attitudes and actions towards people-centred approaches. This will be a challenging and long-term task and may involve constitutional amendment – or at least the reinterpretation of “the administration of justice”.
Committing resources to review how the justice system and its key institutions can achieve more people-centred mandates. A step in the right direction would be reviewing and better defining the roles and functions of justice institutions, including their roles in the provision of justice services, to prevent overlap and duplication of mandates, services and initiatives and allocate resources more efficiently.
Reactivating the Council for the Reform of the Justice System (CRSJ) and the implementation of the Public Policy for the Reform of the Justice System. Integrate people-centred and whole-of-government approaches to provide holistic and integrated justice services.
‑Conducting a systems-wide review of all justice services to identify overlaps and duplication, address gaps in service availability, and guarantee quality and effective access to justice for all. To implement this recommendation Peru may consider:
Considering reviewing the existing justice services and co-ordination mechanisms to avoid duplication and overlap of mandates and the continuum of services. This should include the duplication and overlap of services, including legal advice, legal defence, and multidisciplinary services; co-ordination to establish appropriate financial mechanisms and allocation of resources to ensure the implementation and continuum of services; the planning of effective integrated services and joint strategy; and follow-up and monitoring.
Strengthening co-ordination between the MINJUSDH and other institutions providing similar or complementary services with the Women Emergency Centres (Ministry of Women and Vulnerable Populations). This includes public defence services and legal advice concerning cases of violence against women, with the judiciary on conciliation and enforcement of decisions.
Promoting co-ordination between the judiciary and the Public Prosecutor’s Office. It is important to co-operate with other institutions regarding better planning for providing complementary services for access to justice. The imbalance between the number of Public Prosecutor’s Offices and judges that deal with cases of violence against women and environmental issues has an impact on the ability to resolve legal needs in an effective and timely manner.
Promoting the independence and the work of the Ombuds Office as an accountability mechanism. Considering their presence and work at the national level, especially in regions where the most vulnerable populations face the need of the presence of the state and its services and where there is presence of social conflicts. This may include better co-ordination with the Ministry of Economy and Finance on budget allocation.
Strengthening capacity of public defence to provide services across the country. Provide them with training in different topics and legal and justice needs (including gender and Indigenous communities' rights and justice), and the allocation and expense of sufficient financial resources to promote this work.
Fostering an institutionalised, integrated, co-ordinated, professionalised and sustainable system of continuing education for judges, prosecutors and other personnel involved in the administration of justice to prevent and solve the fragmentation in capacity building and overlap of mandates on this issue. The Academy of the Magistracy should lead this in co-ordination with the other justice institutions.
Promote the participation of external stakeholders in the justice policy cycle and in service design and delivery. To implement this recommendation Peru may consider:
Integrating external stakeholders in designing, delivering, monitoring and evaluating public policies and services. Include them in the existing and future co-ordination mechanisms of policies. This includes the review of the existing regulatory framework and policies on this issue. This could be promoted in the National Specialized System of Justice for the Prevention, Sanction and Eradication of Violence against Women and Family Members (SNEJ) and the CRSJ.
Considering implementing a whole-of-society approach to resolving legal issues. This includes partnering with the private sector, legal professionals, trade unions, academia, civil society and individuals for the development and provision of legal, justice and related services. For example, the training of the judicial and legal counsellors on violence against women issues could be done through local NGOs, which may know the local context.
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