Lima, Peru

It is important to follow this advice:

• Stay calm. It is not a good idea to run. Speak carefully and clearly. Anything you say can be used against you in a court of law.
• It is not a good idea to touch the officers. Keep your hands where the police can see them.
• It is not a good idea to resist, even if you're innocent or if you think the police are acting unfairly or unlawfully.

https://lpderecho.pe/derechos-intervencion-policial/

https://lpderecho.pe/nuevo-codigo-procesal-penal-peruano-actualizado/

https://www.defensoria.gob.pe/

(a) Can the police arrest you for refusing to answer questions?

At a police intervention, which is the first contact between a person and the police, they have the faculty to stop a person on the streets because of: 1) an act of flagrancy, 2) a court order, 3) an identity control.

During this intervention, you must keep a calm and good behaviour in order to collaborate with the police, and answer all their questions they ask. That is the reason why refusing a question may lead to an arrest, as it may raise a suspicion. If the person do not have its identification document, depending on the seriousness of the investigated event or scope of the police operation, and as last option, police can take the person to the nearest police station for identification purposes only (is a retention, not an arrest) and maximum for 4 hours (nationals) or 12 hours (foreigners).

(b) What if the officers do not identify themselves?

If the officers do not identify themselves, you can record the intervention. After the intervention, and with legal advice, you can share this record to "Inspectoría General de la Policía Nacional del Perú" or "Defensoría del Pueblo", as it is an obligation from the officers to provide their names and the dependency they belong when they stop you. Otherwise, it may be considered as an arbitrary intervention.

(c) What if an officer just begins speaking to me but does not order me to do anything?

After identifying themselves, the police have to inform you the reason why they are stopping you. Their orders will depend on this reason, consequently, you do not have an obligation to do something except for identifying yourself, showing your ID.

(d) What if the officer is not in uniform or identified as an officer but I think it is one?

An officer cannot stop you if they are not wearing their uniform or their do not identify as an officer. In case they do it anyway, you can record them.

(e) Can I tell police I do not want to speak without a lawyer?

Yes, you can. You can also request legal advice through a phone call, in the moment the police has stopped you.

(f) If I sit down, am I resisting?

If you sit down, the police can consider it as an act of resistance or disobedience. You should avoid any act that could raise suspicions, and follow the police instructions.

(g) If I am stopped in a group, and some kids run, can I run?

No, as it may be considered to be as an act of obstruction of the police labour. You always have to keep a calm and collaborative attitude through the police, in order not to raise any suspicion, and wait for their instructions.

(h) Can I tell others (siblings, for example) to run?

No, you always must follow the police instructions.

(i) If the officer's language is not my first language, can I tell them without waiving my rights?

Yes, and you have the right to ask for a translator.

(j) If I did not do anything, can they stop me?

No. Children or teenagers cannot be deprived of their liberty except by written and reasoned order of the Judge, except in the case of flagrant criminal offense, in which the competent authority may intervene.

Note that police officers are allowed to detain any child who is found on the street at night time without parental supervision, and who is using drugs or begging.

It is important to follow this advice:

• You have the right to say no to searches of your person.
• You have the right to say no to searches of your car, house or other surroundings.
• You cannot be arrested for refusing to consent to a search without a warrant, unless there is case of flagrant criminal offense.
• A warrant is a court order so you have no choice but to consent.

https://spij.minjus.gob.pe/spij-ext-web/#/detallenorma/H682695

(a) What if a police officer wants to search my phone?

They are not allowed to do it.

(b) What if a police officer asks me for my password to my phone?

You can deny giving back your password.

(c) What if they tell me to give them my password or other access to my phone?

They are not allowed to do it.

(d) Do I have to give them my device password if they demand it from me if I am not under arrest? What if they just ask for it?

No.

(e) What tools can police use to search me? What technology? (Facial recognition, hidden cameras, finger print searches, etc.)

They can request your ID.

(f) Can they search my backpack or other item I am carrying?

No, unless they have a written and reasoned order of the Judge, except in the case of flagrant criminal offense, in which the competent authority may intervene.

(g) Can they take my picture or record me?

No, they have to ask for your permission. But, they can take a photo, even against the will of the person, in case there is an express order of the Public Prosecutor's Office and to carry out similar measurements. The police will record the facts in a minute.

(h) Can they ask me where I am going and why?

No.

It is important to follow this advice:

• The police may arrest you because they suspect you of committing (or having committed) a violation of the law, or if they suspect that you currently have evidence of a crime.
• Sometimes police have a warrant for an arrest. You should be clear on what kind of warrant is being presented to you if that is the case.
• It is a good idea to review any paper from police/warrant carefully, to ensure you understand what exactly is covered.
• If arrested, you may be charged with a felony for a more serious crime (with potential jail time of one year or more), a misdemeanor for a less serious crime (with jail time of less than one year) or a violation.
• If the police arrest you, they also have the right to search you. Anything found during this search may be used as evidence against you.

(a) What if I did not do anything illegal, must I speak with the police and answer questions?

According to article 68.l) of the Process Criminal Code, police can only interrogate an individual with the presence of his/her lawyer and the Prosecutor.

(b) What if they tell me something they are investigating that is wrong? Must I correct them?

You do not have the obligation to correct them and you can always remain silence if you are not accompanied by your lawyer. Nonetheless, if you have witnessed a crime you can decide to cooperate with investigation. In this last scenario, you can wait for your lawyer to provide any additional information to the Police.

(c) What if an officer just begins speaking to me but does not order me to do anything?

This would qualify as an intervention not an arrest. In this scenario, police can only request for identification.

(d) What is the legal difference between talking to them if they do not tell me I am under arrest, versus after they inform me that I am under arrest?

If police approach you without arresting you, this is called an intervention. In this kind of cases, Police could only request you to identify yourself and show them corresponding ID. If requested, you have the obligation to identify yourself; otherwise, they could take you the Police station for identification, which is a process that could take hours. On the other hand, if you are informed you have been arrested, from that point on you have the right to be informed about reasons that led to your detention and should be read your rights, which include calling your lawyer.

It is important to follow this advice:

(a) What is the difference between the police deciding to search me or my belongings (phone, person, backpack) and me agreeing to the search?

The police could only require to search your and/or your belongings in case of presumption of a crime, If there is not cause that could reasonably lead them to believe that you are about to commit a crime they cannot search you or your belongings. If there is not a situation of presumption of a crime, you do not have to agree with being searched.

(b) What if they tell me to give them information versus them asking and me providing answers voluntarily?

If you are not formally requested you do not have to provide any information to the police. Moreover if information is provided informally there could be later problems to use it in court. If you have any information that you consider could help the police in their investigation you could request being consider a witness so they can formally collect information provided and be subject to guarantees and protection provided to this group.

It is important to follow this advice:

• No. Police officers can legally arrest you without a warrant in several circumstances:
  • When the crime is committed in front of the police officers;
  • When the crime has just been committed and the person is discovered or
  • When the officer has probable cause (reason to suspect) that the suspect committed a felony, whether or not the act was done in front of them (within 24 hours, the person is identified by the witness or has instruments or effects related to the crime)

(a) If I did not do anything, can they stop me?

If you have not incurred in a flagrant felony and the police do not have a warrant, they cannot stop you. However, in case they use the force, and somehow ended up being arbitrarily arrested, you can file a Habeas Corpus, or if any family or friends, or any third person witnessed your arbitrary arrest, they can file this remedy on your behalf. Also, the family or friends can communicate with the People´s Advocate (Defensoría del Pueblo). If the detainee is a minor, it can be requested that the Prosecutor specialized in Family matters is notified so he/she can decide following actions to be taken in the case considering that the person arrested is a minor.

(b) Can I ask for the reason they stopped me?

Yes, the police must inform you about the reasons that caused your arrest. This information must be provided along with all the rights that assist you in this particular scenario, including the right to be assisted by a lawyer at all stages of the procedure.

(c) Can I advocate for another young person stopped by police if we are stopped together?

Yes, it is possible to advocate for other young person while stopped by the police. You even have the possibility to submit an habeas corpus in their behalf in case of an arbitrary detention if you eventually are released and the other person remains detained (even if you are not his/her family or direct relative).

(d) If I think the stop is unjustified, what can I do?

Police detention only lasts for a period of forty-eight (48) hours or the term of the distance. In all cases, the Police will notify the detainee or arrested person of the rights he has. A record will be drawn up from that diligence. When the accused considers that during the Preliminary Proceedings or in the Preparatory Investigation the provisions have not been complied, or that his rights are not respected, or that he is the subject of improper rights limiting measures or illegal requirements, he may go to the Judge of the Preparatory Investigation for protection so that he corrects the omission or dictates the corresponding correction or protection measures. The request of the accused will be resolved immediately, after verifying the facts and holding a hearing with the intervention of the parties (articles 71, 263 and 264 of the Criminal Procedure Code).

(e) Can I get the officer's identifying information for a future complaint?

Yes, respect for the rights of the detainee must be recorded in a record, signed by him and the corresponding police officer. If the detainee refuses to sign the record, the abstention will be recorded, and the reason will be recorded if expressed. Thus, the identity of the police officer will be recorded for a possible future complaint (article 71 of the Criminal Procedure Code).

It is important to follow this advice:

• You are under police custody if you do not feel free to leave an officer's presence, or if a reasonable person in your shoes would not feel free to leave.
• If the following happens, you are likely under arrest under the law:
  • an officer handcuffs you;
  • an officer forcibly holds you down;
  • an officer puts you into the back seat of a police car; or
  • an officer warns you about your rights.
• An officer only has to warn you of your rights before the police question you. This means an officer can arrest you before warning you of your rights.
• An arrest without rights warnings is still a valid arrest; it just may mean that evidence collected from it is not admissible in court later.

(a) What if I do not know if I am under arrest?

The rights of the detainee would be violated, since every person has the inviolable and unrestricted right to be informed of their rights, to be informed immediately and in detail of the accusation formulated against them, and to be assisted by a Defense Lawyer of their election or, when appropriate, by a public defender, as soon as they are summoned or detained by the authority (art. IX of the Criminal Procedure Code).

(b) What is the difference between detention and arrest?

In Peru, the Police arrest, without a court order, anyone caught in criminal flagrancy (art. 259 of the Code of Criminal Procedure). On the other hand, any person may proceed to the arrest in a state of criminal flagrancy and should immediately hand the arrested person to the Police (art. 260 of the Code of Criminal Procedure). In practice, detention and arrest is the same if the Police has carried it out.

(c) If I am handcuffed, am I arrested?

Yes, the police have the authority to use force, in accordance with current regulations. In this sense, it is commonly considered that one is under arrest if he is handcuffed (art. 5 of Supreme Decree N° 026-2017-IN).

(d) If my liberty is restricted, am I under arrest?

Yes, since no form of restriction of personal freedom is allowed, except in cases provided by law (art. 2 of the Constitution). In this order of ideas, a restriction of freedom by the police following the powers granted to them by law can be considered an arrest.

It is important to follow this advice:

• You can use your right to remain silent or any of your other rights (e.g., the right to an attorney) by saying that you want to use that right.
• You are also able to waive your rights (that is, not use them) by, for example, saying 'Yes, I understand my rights but I am ready to talk to you.' This is not a good idea without a lawyer present.
• Make sure you know what you're doing in giving up your rights.

(a) How do things change if I am read my rights by police?

The detainee can enforce by himself, or through his Defense Lawyer, the rights that the Constitution and the Laws grant him, from the beginning of the first investigative steps until the culmination of the process.

The police has a duty to read the detainee his rights and issue a record:

1. Know the charges filed against him and, in case of arrest, to be told the cause or reason for said measure, delivering the arrest warrant issued against him, when appropriate;
2. Designate the person or institution to which his arrest should be communicated, and that said communication be made immediately;
3. Be assisted from the initial acts of investigation by a Defense Lawyer;
4. Refrain from testifying; and, if he agrees to do so, to have his Defense Attorney present at his statement and at all proceedings in which his presence is required;
5. That coercive, intimidating or contrary to his dignity are not used against him, nor to be subjected to techniques or methods that induce or alter his free will or to suffer a restriction not authorized or permitted by Law;
6. Be examined by a medical examiner or, failing that, by another health professional, when his or her state of health so requires.

(b) Does it matter where I am when the police read me my rights? (street, station, police car, etc.)

In all cases, the Police shall warn the detainee or arrested person that he is entitled to the rights mentioned above (art. 263 of the Code of Criminal Procedure). Also, judges or prosecutors can let the detainee know. According to Peruvian regulations, the place is not relevant (art. 71 of the Code of Criminal Procedure).

It is important to follow this advice:

• You are not required to make a statement, answer police questions or participate in a police investigation, and you never have to go anywhere with the police unless they have arrested you.
• If police have arrested you and if you are under the age of 18, police are required to immediately notify your parent, caretaker or legal guardian.

(a) Am I required to make a statement?

No, the detainee has the right to refrain from testifying; and, if he agrees to do so, he has the right to have his Defense Lawyer present at his statement and at all proceedings in which his presence is required (art. 71 of the Code of Criminal Procedure)

(b) Must police notify my guardian?

Yes, the detainee has the right to designate the person or institution to whom his arrest should be communicated, and that communication must be made immediately (art. 71 of the Code of Criminal Procedure).

(c) Must I confess?

According to the Penal Code of Peru (art. 160 of the Code of Criminal Procedure), for a confession to be valid, it should be:

• duly corroborated with other evidence;
• provided under the normal state of psychological capacity from the confessor;
• given before the judge or prosecutor in the presence of his attorney;
• sincere and spontaneous.

Also, the legal authority should act in accordance with the legal formalities. So the answer is no, you must not confess if you do not want.

https://lpderecho.pe/confesion-sincera-proceso-penal/

https://busquedas.elperuano.pe/normaslegales/decreto-legislativo-que-aprueba-el-codigo-de-responsabilidad-decreto-legislativo-n-1348-1471548-8/

https://spij.minjus.gob.pe/spij-ext-web/#/detallenorma/H1171667

(d) What adults can I ask to be with me?

If you are a legal minor, your parents, guardians or caregivers have the right to be with you in every stage of the process. Also, you have the right to demand the presence of a Public Defender or a private Lawyer. The Police should also communicate your detention to a family member or the person you indicate. The Police will only be able to interrogate you in the presence of your defender. If your defender is not present, the questioning will be limited to validate your identity.

https://busquedas.elperuano.pe/normaslegales/decreto-legislativo-que-aprueba-el-codigo-de-responsabilidad-decreto-legislativo-n-1348-1471548-8/

https://spij.minjus.gob.pe/spij-ext-web/#/detallenorma/H1171667

(e) Who do police have to contact if I am a legal minor?

If you are a legal minor, the police should contact your parents, guardians or caregivers. Also, the Ministry of Justice and Human Rights provides free and specialized defense to all the teenagers that, due to their limited resources, cannot have a defense attorney.

https://www.defensoria.gob.pe/wp-content/uploads/2018/05/Informe_51.pdf

https://spij.minjus.gob.pe/spij-ext-web/#/detallenorma/H1171667

It is important to follow this advice:

• You should always contact a lawyer before making any statements to anyone in a criminal case or investigation.
• This applies even if you are told that (i) police officers only want to question you and/or (ii) you are only a witness.
• While you do have to wait until you attend court to get a lawyer appointed if you cannot afford your own lawyer, you should still ask for a lawyer as soon as you are questioned or arrested by the police. If you are arrested, you have the right to remain silent and to not speak until your lawyer is present.

(a) What if I am just a witness?

The best interest of the underage witness must be protected during the whole process, by granting the defense of their human rights. The identity of the underage witness must be maintain private at any time. You should not be exposed in the media and no pictures of you can be published.

https://busquedas.elperuano.pe/normaslegales/decreto-legislativo-que-aprueba-el-codigo-de-responsabilidad-decreto-legislativo-n-1348-1471548-8/

https://spij.minjus.gob.pe/spij-ext-web/#/detallenorma/H1171667

It is important to follow this advice:

• No. The police may lie to you during the course of an investigation, including lying about the strength of the case they have against you and particular evidence they have in their possession.
• Sometimes police will lie to try and get you to talk more.

(a) Can the police lie to me?

Yes, the police may lie to you. This is something you should take into account in case you are in an interrogatory room. That is why you should remain silent in case you do not have a lawyer.

(b) Do I have to tell the police the truth?

You do not have the obligation to tell anything to the police. You have the right to remain silent in order to avoid making self-incriminating statements and to count with the presence of a Public Defender or a private Lawyer, as well as to be treated as innocent.

https://www.mpfn.gob.pe/escuela/contenido/actividades/docs/3270_3._expodos.pdf

https://laley.pe/art/10028/el-derecho-a-guardar-silencio-en-la-declaracion-del-imputado-puede-mentir-el-imputado-en-su-declaracion-a-proposito-del-caso-de-los-hechos-notorios

It is important to follow this advice:

The Office of the Child Advocate (https://www.defensoria.gob.pe/adjuntia/ninez-y-adolescencia/) and the People´s Advocate (Defensoría del Pueblo) (https://www.defensoria.gob.pe/) have a toll free service now and a contact email. The Office of the Child Advocate fights for the defense and promotion of the rights of the kids and teenagers under the Office of the People´s Advocate.

It is important to follow this advice:

The People´s Advocate (Defensoría del Pueblo) wants to fight against the discrimination in the society. That is the reason why it deals with different cases involving discrimination and racism around the country, investigating the circumstances and requesting the public organisms to intervene in each case in order to eradicate the discrimination acts and restitute the rights that have been violated.

https://www.defensoria.gob.pe/areas_tematicas/vivir-sin-discriminacion/

It is important to follow this advice:

The Culture Ministry (https://alertacontraelracismo.pe/reporta) has an online form to report or alert if you have been victim of racism. You can do that from your computer, tablet or smartphone. You can send an alert in case you do not have enough information about the victims or the aggressor or a report, in case you have enough information to analyze the facts.

It is important to follow this advice:

You can only be detained if the police catches you committing a crime, or if you have just committed it and a witness identifies you or if there is evidence that incriminate you.

The Police, by itself -by informing the Prosecutor- or by order of the Prosecutor, can search a person when there are well-founded reasons to consider that a person hides in his body or personal sphere goods related to the crime. First, the Police should request the detainee to show the searched goods. You can only be registered by an authority of your same sex and under any circumstance you will be asked to undress yourself (art. 210 of the Code of Criminal Procedure). Also, the detainee can request the presence of a trusted person.

For improper search or detention, it should be communicated to the Judge of the Preparatory Investigation so he corrects the omission or dictates the corresponding correction or protection measures.