Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Abolition of Forced Labour Convention, 1957 (No. 105) - Peru (Ratification: 1960)

The Committee takes note of the information provided by the Government in its 2019 report as well as the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the joint observations of the Autonomous Workers' Confederation of Peru (CATP); the Confederation of Workers of Peru (CTP); the General Confederation of Workers of Peru (CGTP); and the Single Confederation of Workers of Peru (CUT-Perú) transmitted by the Government with its supplementary information.

Article 1(a) and (d) of the Convention. Imposition of community service as a penalty for opposition to the established political, social or economic system, or as punishment for participating in a strike. For a number of years, the Committee has been observing that section 200(3) on extortion of the Penal Code, which provides that anyone who, through violence or threats, occupies premises, blocks thoroughfares, prevents the free movement of citizens or disrupts the normal operation of public services or work on a legally authorized worksite, with a view to obtaining from the authorities an undue benefit or economic advantage or advantage of any other nature, shall be liable to imprisonment of five to ten years, is drafted in broad terms. In this regard, the Committee noted that while the national legislation establishes the voluntary nature of work performed by persons sentenced to imprisonment (section 65 of the Code for the Implementation of Sentences), under sections 31 to 34 of the Penal Code and section 119 of the Code for the Implementation of Sentences, the penalty for the performance of community services – which may be applied either as an autonomous sentence or as an alternative to a custodial sentence – obliges the person concerned to perform work free of charge for various entities. Moreover, the above-mentioned legislation makes no mention of the possibility for the convicted person to consent to, or refuse, the sentence of the performance of community service when applied as an alternative to a custodial sentence. The Committee therefore requested the Government to clarify whether the sentence of the performance of community services could be imposed as an alternative in the event of a violation of section 200(3) of the Penal Code and, if so, whether the consent of the person concerned is required for the application of this penalty.

The Committee notes the Government’s indication, in its report, that the penalty of community service as an alternative to a custodial sentence cannot be applied to persons convicted under section 200(3) of the Penal Code as a result of: (i) section 32 of the Penal Code which provides that the penalty of community service can only be applied as an alternative to a custodial sentence when the penalty to be replaced is not greater than four years (while section 200(3) provides for a penalty of imprisonment of five to ten years); and (ii) section 3 of Legislative Decree No. 1300 of 30 December 2016 which expressly provides that prison sentences resulting from section 200(3) of the Penal Code cannot be replaced by a penalty of community service. It notes that the Government does not provide information on the interpretation made by the courts of the provisions of section 200(3) of the Penal Code which are drafted in broad terms, as previously requested by the Committee. The Committee observes however that, in its 2018 report, the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises highlighted that community leaders stated that they had faced criminal charges under section 200(3) of the Penal Code for allegedly disrupting the provision of public services or legally authorized work while taking part in protests to demand respect for human rights, and that numerous people who had participated in social protests against the impact of business activities on human rights had faced criminal charges and been subjected to various forms of intimidation and stigmatization (A/HRC/38/48/Add.2, 9 May 2018, paragraphs 70 and 71).

The Committee further notes that several other provisions of the Penal Code provide that community service can be handed down as an autonomous sentence or as an alternative to a custodial sentence in circumstances covered by the Convention, namely:

• -sections 130 (slander), 345 (insulting national symbols or heroes of the Fatherland), and 452 (disturbance of the public peace) which expressly provide for a penalty of community service; and
• -sections 132 (defamation), 315 (serious disturbance of the public peace), 339 (hostile acts against a foreign State), 344 (outrage to symbols or heroes of the Fatherland), and 348 (riot), which provide for a penalty of imprisonment which may be replaced by an alternative penalty of community service according to section 32 of the Penal Code.

The Committee recalls that when provisions are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views, and insofar as they are enforceable with sanctions involving compulsory labour, they fall within the scope of the Convention (see 2012 General Survey on the fundamental Conventions, paragraph 306). It notes that, in its 2018 report, the United Nations Working Group reiterated the recommendations of the United Nations Human Rights Committee urging the Government to consider adopting legislation decriminalizing defamation, as the criminalization thereof poses a threat to the freedoms of opinion or expression, and to conduct effective investigations of reports concerning attacks against human rights defenders (A/HRC/38/48/Add.2, paragraph 72). In that regard, the Committee notes that the National Action Plan on human rights for 2018-2021 provides for the establishment of a mechanism for the protection of human rights defenders by 2021 and a database to track threats to their safety by 2019 (p. 129). The Committee hopes that the Government will ensure that the above provisions of the Penal Code are not invoked to impose criminal penalties involving compulsory labour for expressing political views or opposition to the established political, social or economic system or peacefully participating in activities carried out as part of a social protest movement or strike. The Committee requests the Government to provide information on any court rulings handed down under those provisions, the penalties imposed and the description of the acts giving rise to such rulings. The Committee further requests the Government to provide updated information on the development and implementation of the mechanism for the protection of human rights defenders and the database established to track threats against human rights defenders, provided for under the National Action Plan on human rights for 2018-2021.