Overview of drug laws and legislative trends in Peru
In Peru, the traditional use of the coca leaf is an ancestral practice which has never been criminalized. In the country there is a scheme of licenses under state control, known as the registry, for the cultivation of coca leaves and their distribution through the National Coca Company (ENACO: Empresa Nacional de la Coca).
However, while in Peruvian laws consumption or possession of controlled substances for personal use is not punishable, it is estimated that 60 percent of detentions on drug charges are related to use or simple possession. Moreover, the penalties for drug related crimes are relatively high and disproportionate, and infringe upon fundamental rights such as freedom, due process and other judicial guarantees. The penalty for small scale sales of drugs is between one to eight years in prison, according to the Criminal Code.Law
Most of the criminal legislation on illicit drug trafficking (IDT) could be found in articles 296 to 303 of the 1991 Criminal Code. In the past years, legislation has been modified to increase penalties, adding and eliminating legal figures. Law 28002, which modified articles 296 to 299 of the Criminal Code was issued on June 17, 2003.
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Peru is, along with Colombia, the largest producer of coca leaf and cocaine hydrochloride. In the last decades, the strategy of Peruvian governments has been based in a policy of supply reduction through prohibition and forced eradication. In light of the failure of this policy, the current Peruvian government has proposed a more global drug strategy, based on the articulation between supply control policies and an alternative, sustainable development model.
According to Article 296 of the Criminal Code, the following conducts constitute a crime:
1) Promoting, encouraging or facilitating illegal drug use through production or trafficking acts;
2) Being in the possession of drugs for their sale (trafficking);
3) Commercializing supplies destined to illegal preparation of drugs;
4) Commercializing or cultivating poppy crops or marijuana or forcing others to their planting or processing;
5) Elaborating or commercializing chemical supplies and products. In the matter of illicit trafficking of drugs there are two modalities: the promotion or stimulation of trafficking and micro-commercialization (sale of illicit drugs at a small scale —up to 50 g of PBC, 25 g of cocaine chlorhydrate, 5 g of opium latex, 100 g of marijuana or 2 g of ecstasy).
Article 299, referring to non punishable possession establishes the following:
The possession of drugs for immediate self-use is not punishable in quantities that do not exceed five grams of cocaine paste, two grams of cocaine chlorhydrate, eight grams of marijuana or two grams of its derivates, one gram of opium latex or two hundred milligrams of its derivates, or two hundred and fifty milligrams of ecstasy, containing Metilendoxianfetamine —MDA, Metilendioxianfetamine, MDMA, Metanphetamine or analogous substances. (Article modified by Article 2 of Legislative Decree No 982, published 22 July 2007.)
The possession of two or more types of drugs is excluded from that established in the preceding paragraph.
In spite of this article, preventive detention is applied as a precautionary measure in all cases related to illicit drug trafficking. In effect, the Peruvian Political Constitution foresees detention for up to 15 days for drug related crimes.
The National Police of Peru, which does not have clear intervention rules, persecutes consumers in spite of the Criminal Code provisions. In recent years several laws have been passed with the objective of restructuring penalties for drug offenses, differentiating substances and quantities in cases of non-punishable possession for personal use as well as strengthening mechanisms to combat organized crime particularly in money laundering (Resolution SBS N 3091-2011) and loss of domain (Loss of Domain Act No 29212).
Impact of legislation on the prison situation
Currently, drug related offenses constitute the third cause of overcrowding in Peruvian prisons. On average in recent years, between 20 and 24 percent of the population in jail is there on drug related charges. Only one third of them are in a definite juridical situation, while the rest is awaiting sentencing.
After the year 2000 there has been a gradual increase in the prison population. From 2003 onwards, the increase corresponds with the period in which former president Alejandro Toledo oriented the Peruvian drug policies in the same direction as international demands.
As mentioned before, the current legal regime is not flexible enough to avoid harmful and arbitrary detention of potential drug users (60 percent of total detentions are related to drug charges). Also, in the case of drug offenses there has been a hardening in conditions: police detention can last up to 15 days —the regular term is 24 hours— and habeas corpus rights are denied in cases of trafficking, regardless of whether the crime is related to criminal organizations or natural persons. Lastly, the tougher measures are extended to the prohibition of rights and the lack of access to prison benefits in the case of drug related crimes. Therefore Article 47 of the Code of Prison Enforcement (Código de Ejecución Penitenciaria) suppresses benefits established in Article 47 as leave or parole. In those cases, the Constitutional Tribunal allocates the legislator a margin of discretion to provide or deny such benefits.
It should be said that the prison centers in the country are a potential source of several infectious diseases. Mental health problems, particularly those associated to drug use, are not adequately treated.
Legislation and Reform
The growing body of legislation and the hardening of penalties have rekindled the debate regarding the topic of death penalty, first in 2004 and then in 2006 with the endorsement of former president Alan García. At this point, there are expectations about the reforms that the government of Ollanta Humala may be able to introduce, particularly in terms of supply-reduction. Regarding the larger goal of solving the problem of prison conditions, which have deteriorated due to drug crimes, it is expected that a legal reform offers a structural solution to the problem as well as limits to faculties and activities for the police and timely judicial action.
In November 2011, the National Commission for Development and a Drug-Free Life (Comisión Nacional para el Desarrollo y una Vida sin Drogas, DEVIDA) the governing body in charge of drafting drug policies in Peru, presented its new National Strategy for Drug Combating 2012-2016, which seeks to reduce by 20 percent the area cultivated with coca leaf in the country and improve the Human Development Index among the population in coca producing basins by 10 percent. With the change of president in this institution in January of 2012, it is likely that this proposed strategy will suffer fundamental changes.
There is discussion in Congress aimed at allowing the Armed Forces to have a more active role in the strategies for drug combating, in zones of emergency by giving them faculties to persecute and detain those implicated in illicit drug trafficking and placing detainees in the hands of the closest police station.
Citing a recent article on the Peruvian press: “this opinion does not add to the strategy of drug control 2012-2016 led by DEVIDA, which focuses on strengthening the democratic institutionalization for law and order in its provisions for prevention, prohibition, sanction and development. On the contrary, it opens a space to exert stress on the relation between national and local authorities and social organizations in the VRAE (Valle del Río Apurímac y Ene) region by expanding the role of the Armed Forces, to the detriment of the local police, since the military actions that could take place to persecute and detain alleged drug traffickers would be of high risk to the inhabitants of areas such as the VRAE, as well as to the military personnel involved in such a scenario”.