Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 1(a) and (d) of the Convention. Imposition of a sentence of community service as a punishment for expressing political views or for having participated in strikes. The Committee notes the Government’s report and the comments made by the General Confederation of Workers of Peru (CGTP) on the application of the Convention, which were attached to the Government’s report.

In its comments, the CGTP refers to the adoption in 2007 of various legislative provisions to “criminalize” social protest. The trade union refers in particular to the adoption of Decree No. 982, amending section 200 of the Penal Code, which incriminates extortion. Under the terms of subsection 3, any person who through violence or threats occupies premises, blocks communication routes, prevents the free movement of citizens or disturbs the normal operation of public services or work on a legally authorized worksite, with a view to obtaining from the authorities a benefit or an undue economic advantage, or any advantage of any other nature, shall be liable to a custodial sentence of from five to ten years. According to the CGTP, the definition of this offence is ambiguous and too broad with the effect that it would make it possible to impose penal sanctions on those who participate in protest action opposing the political, social or economic system or who are exercising the right to strike. The union recognizes that the sentence envisaged in section 200 of the Penal Code for the crime of extortion does not explicitly refer to the imposition of labour. Nevertheless, the sentence of the performance of community service is one of the penalties set out in the legislation which may be applied as a punishment for certain offences.

The Committee recalls in the first place that, following the adoption of Act No. 27187 of 1999, section 65 of the Code for the Implementation of Sentences explicitly established the voluntary nature of work performed by persons convicted to a custodial sentence. With regard to the penalty of the performance of community services, the Committee observes, under the terms of
sections 31–34 of the Penal Code and section 119 of the Code for the Implementation of Sentences, that this sentence may be applied either as an autonomous sentence (when it is specifically associated with an offence), or as an alternative to a custodial sentence (when, in the view of the court, the penalty to be replaced is not greater than four years). Section 34 of the Penal Code provides that this sentence obliges the person concerned to perform work free of charge with various entities. The Committee observes that the legislation referred to above makes no mention of the possibility for the convicted person to consent to, or to refuse the sentence of the performance of community services when applied as an alternative to a sentence of imprisonment.

In view of the above, the Committee requests the Government to indicate whether the sentence of the performance of community services may be imposed as an alternative in the event of violations of section 200(3) of the Penal Code and, if so, whether the person concerned is called upon to give consent to the application of this penalty. The Committee requests the Government to provide copies of court rulings under section 200(3) of the Penal Code so that it can examine the manner in which these provisions are interpreted by the courts.