On 6 July, Perú’s Constitutional Court published what is considered a “historic judgement” in that the highest Court in the land recognised that the right to protest is a human right on its own merit.
The judgement was issued in response to a demand of unconstitutionality against modifications that had been made to Art. 200 of the Penal Code pertaining to “crimes of extorsion”. According to the petitioners – Derechos Humanos y Medio Ambiente (DHUMA) in Puno, the College of Lawyers in Puno, Derechos Humanos Sin Fronteras (DHSF) in Cuzco, and the Instituto de Defensa Legal (IDL) in Lima – these changes made over the years had become a threat to human rights and to those that defend them, particularly in contexts of social protest.
Although the demand of unconstitutionality was rejected for failing to attract the necessary five votes for admissibility (four votes in favour, three against), the Court issued an interpretation of Art. 200 that adheres to the Constitution and to international human rights standards and principles. This will make it difficult in practice for prosecutors to use ‘extorsion’ charges in the context of social protests.
Until recently, ‘extorsion’ has been widely used to criminalise human rights defenders and community leaders that have taken part in protests against projects they deem threatening to their livelihoods and the environment. ‘Extorsion’ carries lengthy sentences of ten to 15 years and has been applied in instances when an individual “through violence or threats, occupies public places, [instigates] blocks roads or impedes the transit of people…”. In practice, many leaders accused of extorsion are held for lengthy periods in preventive detention just for taking part in social protests.
The Court’s conclusion that the right to protest merits constitutional recognition was sustained on the argument that there is “…a crisis [arising from the gap] between democratic representation and those represented. It is in this breakdown that there is a need to recognise and guarantee the right to protest so that it becomes an expression of popular sovereignty”. It further adds that “protests become an authentic mechanism of expression and revindication of minorities that are not represented by the state” (Grounds 72 and 73).
The Constitutional Court also affirmed that the state should use the legal system as a last resort, instead using mechanisms to encourage dialogue. It also added that “the increasing resort to accusations and sanctions or of criminal prosecution for conjunctural reasons does not comply with the constitutional end of the rule of law. And it is those restrictions to personal freedoms produced under these conditions that are contrary to the right to human dignity” (Grounds 17).