César Bazán Seminario*

The global dilemma between authoritarian and democratic law enforcement expressed itself legally recently in Peru: on March 28, 2020, Peruvian Congress enacted Law 31012, the poorly named so-called “Police Protection Law,” which does a disservice to the strengthening of the police and democracy during the current health crisis.

The spread of CODVID-19 led to drastic measures being taken in Peru. Among these measures are a declared state of emergency and government-mandated social isolation, in effect since March 16, with the accompanying strict police and military control that can be expected from a State in the Global South. As expected, while the number of people detained for violating the restrictions is in the tens of thousands, public complaints about cases of excessive use of police and military force went viral online.

In this situation, the new Peruvian Congress is yielding to authoritarian temptations and contradicting efforts to build a democratic police force during the health crisis. In doing so, it disregards the citizen security report of the Inter-American Commission on Human Rights (IACHR), which, more than ten years ago, stated that investigations against police officers for the use of lethal force should be serious, impartial and effective (paragraph 119).

Let us begin by recalling the context. The bill was approved in July 2019. At that time, Peru was experiencing a tense confrontation between the Executive and the Legislative powers, which implied the possibility of constitutionally closing the parliament. The misnamed so-called police protection bill seemed to respond to the populist logic of a delegitimized congress, which was seeking to win over the police force and the public, who were exhausted by the lack of effective citizen security responses.

The bill obtained the votes to be approved by that parliament. However, the Peruvian Executive did not issue a pronouncement on it: it neither observed nor promulgated the bill. That inaction enabled either Parliament or the Permanent Commission of Congress to enact it (under article 108 of the Constitution). As will be recalled, on September 30, 2019, the Executive dissolved Parliament constitutionally. Consequently, the bill was forgotten until March of this year, when the newly elected Congress was installed, rescued the norm, and hastily enacted it as law.

On the one hand, the biggest problems with the law are the following: the prohibition of pretrial detention for police officers, and the confusion caused by the legal elimination of the proportionality requirement for the use of police force.

Article 4 of the law prohibits preliminary arrest and pretrial detention for police officers who kill or injure by using their weapons or other means in a regulatory manner. As well as being unconstitutional, this goes against the American Convention on Human Rights because it affects the rights to equality and non-discrimination. The argument is as follows: if the legal requirements for pretrial detention are met, it is not constitutional to treat police officers differently from other persons. In this case, there are no lawful reasons to justify different treatment in favor of police officers.

Moreover, the elimination of these criminal provisions sets a dangerous precedent. Without detracting from the criticism of the excessive use of both figures, both preliminary arrest and pre-trial detention have been powerful tools in the fight against corruption in Peru. For this reason, high-level political leaders have tried to weaken, if not annul, them. The prohibition of both figures for police officers opens a dangerous door for other officials to claim similar treatment to that which police officers will receive.

Furthermore, it is neither feasible nor transparent to legally provide for the elimination of the principle of proportionality in the use of police force, since the international rules that apply in this issue are binding on Peru. Thus, Congress not only confuses officers and non-commissioned officers, falsely telling them that proportionality is no longer a requirement, but it can also confuse judges and prosecutors and the general population. This confusion could lead police officers to consider proportionality a requirement that has been eliminated, and to use illegal force indiscriminately. In the context of a state of emergency and health crisis, issuing a rule that confuses police officers about the use of force poses an absolute risk to the life and physical integrity of persons.

On the other hand, a favorable aspect of the law is that it strengthens the legal defense that police will have when they exercise force legitimately. The right to receive legal advice was already present in the Law on the Use of Force by the Police of 2015 (Legislative Decree 1186). In dealing with a justice system that improperly fulfills its functions, police officers need lawyers paid by the State. There are two problems posed here. First, the law created a new Prosecutor’s office instead of strengthening the existing offices that provide legal services for police officers. Secondly, the risk is again that authoritarianism will gain ground, and legal defense might be provided to those who misused force.

A real defense of police officers is not to prohibit pretrial detention, eliminate the proportionality in the use of force, and reiterate the right to legal defense, but – as the IACHR also pointed out in its 2009 report – to provide police officers with the tools, budget, and minimum conditions to exercise force properly. Without a doubt, the list of police rights that appear in the Law on the use of force must be fully complied with. The list includes: the right to protection of the life and personal integrity of the police officer; the right to not abide by illegal or arbitrary provisions or orders; the right to receive permanent education, training, and coaching on the use of force; the right to be assigned weapons, clothing, and equipment; the right to receive treatment and medical assistance; the right to receive psychological counseling to overcome issues generated by the use of force; and the right to legal advice.

In short, the Peruvian Police Protection Law is unconstitutional and in contradiction with the American Convention on Human Rights because it gives unequal treatment to police officers, and it is dangerous because it opens the door for other officials to demand on their behalf, on an equal footing, the prohibition of preliminary arrest and pretrial detention. It also creates confusion about the validity of the principle of proportionality, while undermining the professionalism of the Peruvian police force. We hope that this bad example does not spread to the rest of the Americas as the virus did, and that the Peruvian parliament will amend this error quickly.

*Arnold Bergstraesser Institute

Photo: Gustavo Moya/Flickr