Criminalisation of social protest: the Aduviri case
15 July 2018
An important case is due to come before the Peruvian Supreme Court shortly, with implications both for the protection of the right to protest and respect for indigenous rights to prior consultation.
Protests in Puno in 2011, the so-called ‘Aymarazo’, against the proposed Santa Ana mine led to ten protesters being detained. Last year nine of the defendants were at last acquitted "due to insufficient evidence", but Walter Aduviri, a principal spokesperson of the Aymara community affected and a key figure in Puno politics, was sentenced to seven years in prison and a fine of two million soles. Aduviri has been in hiding since his arrest warrant was issued last year.
Aduviri is a candidate in the regional elections in Puno in October, which gives an extra edge to the controversy surrounding his verdict and whereabouts. But even without this element, public attention to his case is merited and considerable. It is seen as involving a significant shift in the criminalisation of social protest in Peru.
Two forms of indictment have been used: 'non-executive perpetrator' (used for the original ten) and 'indirect perpetrator', now being used against Aduviri. The first, 'non-executive perpetrator', implies that one person instigates a crime and another person carries it out. The second, 'indirect', does not imply agreement between two parties, but that “one of them is manipulating the other to commit the crime against their will: I want to commit a crime and I want to use you to do it. So I'll trick you or force you to do it" according to Pablo Abdo, a human rights lawyer from Puno.
To cite the Latin American arm of Open Democracy, "to date the legal theory of indirect perpetration has been used above all in major cases of serious human rights violations and crimes against humanity....... Now in Peru in 2018, it is being used against spokespersons and leaders of indigenous and peasant communities in social protests." https://www.opendemocracy.net/democraciaabierta/thomas-mc-donagh-aldo-orellana-l-pez/hammer-comes-down-on-social-protest-in-peru-c
A second source of controversy is over Aduviri's right to be considered as indigenous and therefore part of an indigenous community protected by ILO convention 169, the right to prior consultation. Apparently, the judges ruled that Aduviri was not subject to such protection "because he studied at university and had left his territory".
The case is therefore raising controversies around a broad sweep of issues. It should be watched carefully. There is reason to fear that it may indeed represent a significant discontinuity in the criminalisation of social protest by its effect on subsequent court rulings.