CHAPTER IX

PRISON CONDITIONS

          A.          INTRODUCTION 

          1.          The Inter-American Commission accords special attention to the human rights situation of persons deprived of their physical liberty.  The fact that such persons are in an especially vulnerable situation, together with the frequent lack of public policies in this regard that accord due priority to prison conditions, often results in the systematic violation of the human rights of the prison population.  

          2.          The right and obligation of the State to punish persons who commit crimes are beyond any doubt.  Yet certainly this does not imply that persons deprived of their liberty, most of whom in Peru and elsewhere in the hemisphere are in preventive detention, i.e. they have not been found liable by any court, do not have the right to be treated with full respect for their human dignity.  It has been noted, in this regard, that 

The problem of criminal conduct has social and moral roots.  The prison as a "solution" has historically proven not to be an effective alternative for modifying this conduct; to the contrary, it has merely generated more violence.  It has been shown, practically worldwide, that the universe of persons who are in prison are from marginal and poor parts of society, who have not been valued or recognized as persons.[1] 

          3.          The problems related to the prison situation generally affect all the countries of the hemisphere.  In view of this circumstance, the Inter-American Commission has a Rapporteur on Prison Conditions in the Americas, makes periodic visits to the prisons and other centers of detention, both in its on-site visits and on special visits focused exclusively on prison conditions, and includes a chapter on prison conditions in its reports on the human rights situation in the countries. 

          4.          During its on-site visit to Peru, the IACHR visited various centers of detention, in both Lima and the interior:  the prisons visited were those at Ayacucho, Yanamayo, and Challapalca, Castro Castro, Socabaya, Yanamilla, and the Cuartel General "Simón Bolívar". These visits provided an opportunity to meet with both prison authorities and inmates.  In addition, the Commission has continuously updated its information on and continues regular monitoring of  aspects related to the prison situation in Peru.  In this report, the IACHR, after reviewing the applicable national and international legislation, addresses the most significant problems related to the prison situation in Peru.

          B.          LEGAL FRAMEWORK 

          1.          International legal framework 

          5.          Article 1 of the American Convention provides that the States parties undertake to respect the rights and freedoms recognized in it, and to guarantee their free and full exercise to all persons subject to their jurisdiction, without discrimination.  Article 5 of the American Convention, on the right to humane treatment, establishes the following: 

1. Every person has the right to have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

3. Punishment shall not be extended to any person other than the criminal.

4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.

5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.     

          6.          Article 7 of the same Convention provides: 

1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.  

          7.          Within the universal system for the protection of human rights one also finds specific instruments on the human rights of persons deprived of their physical liberty.  In this respect, the leading instruments are the Standard Minimum Rules for the Treatment of Prisoners[2] and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,[3] which establish important standards and rules for the treatment of detainees, concerning, for example, non-discrimination, keeping a registry of detainees, and separating them into various categories; and covering issues such as personal hygiene, food, physical exercise, medical services, the disciplinary regime, prisoner transfers, and prison staff.

          2.          Domestic legal framework 

          8.          The Peruvian Constitution provides in its first article that "the defense of the human person and respect for human dignity are the supreme end of society and the State."  The Constitution also sets forth, at Article 139, the "right of prisoners and convicts to occupy adequate establishments" and the "principle that the prison regime has as its purpose the re-education, rehabilitation, and re-incorporation into society of the person punished." 

          9.          The 1991 Code of Criminal Enforcement provides that "enforcement of criminal sentences and measures that deprive the accused of their liberty to be free from torture or inhuman or humiliating treatment and of any other act or procedure that is an affront to the dignity of the inmate," that the "prison regime respects those rights of the prisoner not affected by the conviction," that the "Penitentiary System incorporates the provisions, conclusions, and recommendations of the United Nations for the prevention of crime and treatment of the criminal," and that the "inmate occupy an adequate environment and be accorded comprehensive treatment, from intake to release."  

          10.          The State has dictated several special laws which would appear to be at odds with the general legal framework.  Thus, for example, Decree-Laws No. 25,474 and No. 25,744 established rules with respect to persons found guilty of terrorism and treason that imposed continuous solitary confinement during the first year of detention, and a maximum of 30 minutes of family visits per month.  That regime was made less stringent with Supreme Decree 005-97-JUS, of 1997. 

          11.          The prison regime for persons incarcerated for common crimes was also made more severe with Supreme Decree 003-96-JUS, of 1996, Legislative Decrees 895 and 897 of 1998, and Supreme Decree 007-98-JUS, also of 1998, which, among other things, established a stage of solitary confinement of the inmates for common crimes, defined as "a period in which the regime of life established in the close stage of maximum security is applied, with absolute restriction of social contacts, for one year, and only once while serving the sentence.  The period of solitary confinement served during the criminal proceedings may be deducted."  On this point, the Peruvian State indicated in its observations that measures are being adopted progressively to loosen up this prison regime.

          C.          PRISON SITUATION 

          12.          The Peruvian State has developed a plan to build new prisons. 

          13.          Peru's prison population as of June 1999 is approximately 27,500 (approximately 25,000 men and 2,500 women), distributed in 84 prisons nationally.  Those persons have been accused or convicted of the following offenses (approximate figures):  common crimes, 17,000 persons; illicit drug trafficking, 6,500; terrorism, 2,000; treason, 900, and aggravated robbery, 500.   In the observations made by the Peruvian State, it was indicated that according to the records of the National Penitentiary Institute, the prison population with respect to whom no verdict has issued, as of February 2000, accounts for 52.07% of the total.  In addition, the Peruvian State indicated that it is taking several measures to reduce the prison population not convicted.  In addition, it noted that a Commission was formed to propose measures to be adopted to reduce the prison population.   

          14.          In this respect, the high number of prisoners who have not been convicted is a cause of concern to the Commission.  The American Convention prohibits arbitrary detentions and ensures that people have the right to be judged within a reasonable time or released.  This implies the principle that one should be free during the trial; and that preventive detention is a precautionary measure, not a punitive measure, that may be granted in express cases and justified under international standards, but which cannot exceed a reasonable time.  If the reasonable time is exceeded, this means that the preventive detention has become an anticipated sentence, in violation of the right of every person to be presumed innocent until proven guilty by law, enshrined in Article 8(2) of the American Convention.  The principle of a reasonable time, as the Inter-American Court of Human Rights has indicated, has the purpose of keeping the accused in that status for a long time, and ensuring that the accusation is decided on promptly.[4]  

          15.          For its part, the IACHR, in its on-site visit, was able to observe directly the unacceptable situation of overcrowding and deficiencies in the food given the inmates, both in terms of the amount budgeted for the food of each inmate, and the non-existence of nutritional control to guarantee the quality of the foods provided, and the lack of exhaustive control in the use of the budget allocated.  In this regard, it should be noted that the Standard Minimum Rules for the Treatment of Prisoners mentioned above provide that: 

20(1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.

20(2) Drinking water shall be available to every prisoner whenever he needs it. 

          16.          The Peruvian State, in its observations, indicated that through the National Penitentiary Institute measures are being taken "to improve the conditions of internment, improving coverage of services to the prison population through professional teams of physicians, psychologists, social workers, attorneys, teachers, and nutritionists, among others, based on the state budget, albeit limited, plus the support of cooperation agencies." 

          17.          As for the other conditions of detention, the IACHR observed that some prisons, such as those at Challapalca and Yanamayo, are in totally inhospitable places, both cold and geographically isolated.  This makes it very difficult, in practice, for relatives to visit, because of the distance and other related obstacles.  In addition, the conditions of detention of many detainees are excessively severe, as they are practically not allowed to spend time in the yard nor to do physical exercise.  The Basic Principles for the Treatment of Prisoners (supra) indicate that: 

Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged. 

          18.          It should be noted that the Inter-American Court of Human Rights, as mentioned in Chapter II supra, declared that the conditions of detention imposed on the victims as a result of the application of Article 20 of Decree-Law No. 25,475 and Article 3 of Decree-Law No. 25,744 (both provide for continuous solitary confinement for the first year of detention) by the military courts constitute cruel, inhuman, and degrading treatment, in violation of Article 5 of the American Convention.  Incommunicado detention, bringing the prisoner before the court blindfolded or hooded, the Court declared, are per se violations of Article 5(2) of the Convention.  Prolonged solitary confinement causes moral suffering and psychic disturbances, and, according to the Court, constitutes a form of cruel, inhuman, and degrading treatment under Article 5(2).[5]  

          19.          The Commission verified that the regime of visits by prisoners' relatives is inadequate, and received reports on abuses and mistreatment of persons who visit their imprisoned family members.  It is noted, among other considerations, that there is a system for reviewing the persons who visit the prisoners, especially for women, which is an assault not only on their dignity, but also on their health.  Women, for example, are generally subjected to a denigrating check, including a vaginal inspection, which is reportedly performed using the same glove for all the women who visit a given prison.  It is added that women are then required to jump, half-naked, and crouching, and that they are touched.[6]  

          20.          With respect to intimate visits, the IACHR has been told that only some of the men enjoy that right, leading to well-founded complaints on the part of the population affected.  There is clear discrimination against female inmates, for even though the provisions recognize the right to conjugal visits intimate without distinction on ground of sex, the respective prison administrations do not allow them. 

          21.          Other problems have to do with transfers of detainees and their right to health.  As for transfers, it is noted that the National Penitentiary Institute has a practice known as "lanchada", which transfers the prisoners from one part of the country to another, whether in preventive detention or serving a sentence, without any judicial order.  These transfers are often to places far from the courts or the domicile of the family members, causing delays in the proceedings and the rupture of family ties.  As regards health, it is reported that there are serious problems with the supply of medicines, that the number of professionals assigned to cover the health service is very low, and that the most common diseases are digestive, pulmonary, venereal, and, of late, AIDS, which has been spreading at an alarming pace.  The Standard Minimum Rules for the Treatment of Prisoners provide: 

At every institution there shall be available the services of at least one qualified medical officer.... The medical officer shall have the care of the physical and mental health of the prisoners....  Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals.  Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.   

          22.          The Office of the Human Rights Ombudsman has also pointed to reports on abusive treatment and torture by the National Police of Peru, and several complaints against the National Police for arbitrary detentions.[7] 

          23.          The delegation of the IACHR that went to the prison at Challapalca observed the severe conditions to which the prisoners are subjected.  It is considered a punishment prison, as it is said that it does not meet the minimum condition for human survival.  This prison is in an inhospitable area, 4,600 meters above sea level, with temperatures below 0 C.

          D.          RECOMMENDATIONS 

          24.          The Inter-American Commission on Human Rights, mindful of the points set forth in this chapter, makes the following recommendations to the Peruvian State: 

1.          That the State prison policy, in general, be guided by the fundamental principle of respect for the personal dignity of the detainees, and the provisions of Article 7(6) of the Convention, in that prison sentences should be aimed essentially at the reform and social re-adaptation of the persons. 

2.          That all necessary measures be taken to improve the prison system and the treatment of the prisoners, and to fully carry out the provisions of treaties on the subject and other international instruments mentioned supra, and of the Peruvian Constitution. 

3.          That during proceedings only those persons who truly constitute a danger to society or with respect to whom there are serious suspicions that they will not subject themselves to the requirements of the legal process be detained, in keeping with legally established principles determined by the judge with jurisdiction in each case. 

4.          That it ensure the existence of adequate conditions of detention, food, hygiene, work, education, and recreation, in keeping with the above-noted international instruments. 

5.          That the human rights of prisoners' family members be respected, so that the visitors not be humiliated for using their right to visit. 

6.          That it endow the prison system with the resources it needs to develop in keeping with the international laws and provisions in force. 

7.          That solitary confinement be eliminated as a stage in the prison sentence. 

8.          That the prisoners' daily food quota be increased. 

9.          That services related to prisoners' right to health be upgraded. 

10.          That the right to judicial assistance be guaranteed for all accused, and that their human rights to humane treatment, liberty, and a fair trial be duly respected. 

11.          That preventive measures be taken, including educational measures, to try to put an end to arbitrary arrests by the police, and torture at police facilities. 

12.          That the prisons at Challapalca and Yanamayo be deemed unfit to serve that purpose, and that the personnel detained at those prisons be transferred to other prisons.