On May 27th 2014 in Lima, Peru, members of the Regional Network for Pre-Trial Justice in Latin America held a public forum to present the Inter-American Commission of Human Rights’ (IACHR) “Report on the use of pre-trial detention in the Americas.” The forum was co-organized by Network members Due Process of Law Foundation (DPLF), the Institute of Legal Defense (Instituto de Defensa Legal, IDL) and the Center for the Development of Justice and Public Safety (CERJUSC, Centro para el Desarrollo de la Justicia y la Seguridad Ciudadana) with the support of the Open Society Foundations (OSF).

The event featured: James Cavallaro, IACHR’s Commissioner and Rapporteur on the rights of persons deprived of liberty; Eduardo Vega, Ombudsman of Peru; Luis Pásara, expert on judicial reform and DPLF senior fellow; Victor Prado of the Judiciary; Pablo Sánchez of the National Prosecutor’s Office and representatives of the co-hosting organizations.

Commissioner Cavallaro stated that excessive use of preventive detention “is not just a Peruvian problem”, but affects the whole region and therefore should be addressed with local and continental solutions by “all stakeholders in a conscious manner, something that it is not currently happening”. As for Peru, he indicated that while the index of persons detained without sentencing –which according to official numbers stands at 54% of all detained persons- is not the most alarming in the region, it still represents a majority of the detained population and shows a latent tendency to use prison. He emphasized that according to inter-American standards, this precautionary measure should be used only to ensure the accused does not flee before trial or to prevent any obstruction of justice, and that it is very importance that judges and prosecutors apply the control of conventionality when deciding on custody. Commissioner Cavallaro ended with a call to civil society and government officials to document and show the general public the negative costs of pre-trial detention, since most people find it hard to imagine an accused person going through a trial in freedom and don’t fully understand presumption of innocence, assuming that “the place for criminals is in jail”.

For Judges and prosecutors the most serious challenges to reducing the use of prison in Peru are: the existing weak infrastructure for implementing alternative measures, including monitoring and control; the lack of judicial data on the use of preventive detention and prison in general; and judges’ refusal to apply prison sentence reduction mechanism, even in cases where the law would allow it, for fear of being subject to disciplinary actions. This last aspect has had a significant impact on prison overcrowding in Peru as Jose Pérez Guadalupe, Chief of the National Penitentiary Institute (INPE) of Peru confirmed in his presentation during the event.

DPLF Senior Program Officer Leonor Arteaga underscored the importance of the Peruvian State complying with the IACHR Report recommendations to promote greater independence of judges who are responsible for deciding on detention of people accused of a crime. The recommendations note the need to send “from the highest levels of government and judicial administration an institutional message that supports the rational use of preventive detention and respect for the presumption of innocence right” and that “in no case should disciplinary actions be used as pressure or punishment against judicial authorities who issued decisions on pre-trial detention within the scope of their authority and in accordance with the law.”

The IACHR report concludes that the excessive use of pretrial detention is a complex problem with varied causes: legal design issues, structural weaknesses in the justice systems, threats to judicial independence, and tendencies entrenched in the judicial culture and practice, among others. At the same time it aggravates other existing problems in the region, such as prison overcrowding. As stated in the report, not applying preventive detention exceptionally causes serious problems in the prison management, it is extremely costly for states, and is not a measure that contributes successfully to reduce levels of violence and crime.