Because of Peru’s history of military rule, democratic instability, and corruption, non-governmental organizations (NGOs) have played an important role in national development. Although NGOs have long existed in Peru, an NGO boom truly began in the 1970s under the government of Juan Velasco Alverado, due to an atmosphere conducive to reform.
The re-emergence of a democratic government in the 1980s led to a second proliferation of NGOs focused on grassroots issues. Because of the political environment in which many of these organizations emerged, they were committed to the idea of development that did not originate from a top-down approach.
Nonetheless, high levels of corruption, particularly under the Fujimori government in the 1990s, coupled with a politically-left NGO community, has led to frequent tensions between NGOs and the government and crackdowns on NGO activities for several decades.
Currently, the regulatory framework in civil matters in Peru generally remains quite flexible; however, there is no state policy of granting non-profit organizations tax benefits. As a result, not-for-profit organizations, especially NGOs, have problems in finding financial and long-term sustainability. Nonetheless, NGOs tend to have a presence on issues related to social inclusion, environment, human rights, democracy, rural development, and anti-corruption. In addition, indigenous communities and rural populations have taken up causes related to socio-environmental claims.
One of the most important and recurring issues in the not-for-profit sector in Peru is related to the scope of state supervision of NGOs’ receipt of foreign funding. This topic has continued to be prominent as evidenced by several directives of the Peruvian Agency for International Cooperation (APCI) on requirements for renewal of NGO registration by APCI, which were modified in 2016. Renewal procedures for registering local NGOs and foreign organizations (ENIEX) with the APCI have now been eliminated; thus NGOs and ENIEX registration now lasts indefinitely.
One other concern of NGOs relates to El Consejo Nacional de la Magistratura (CNM), which has been replaced by the Junta Nacional de Justicia (JNJ). The reform of the Constitution that allowed its creation was approved by Congress in September 2018 and then ratified by the population through a referendum held in December 2018. Through Law No. 30904 (January 2019), the Constitutional Reform Law was enacted and through Law No. 30916 (February 2019) the Organic Law for the creation of the JNJ was issued. JNJ is a constitutionally autonomous body responsible for appointing, ratifying and dismissing judges and prosecutors at all levels in Peru. It also has the power to appoint, renew or dismiss the head of the Oficina Nacional de Procesos Electorales (ONPE) and the head of the Registro Nacional de Identificación y Estado Civil (RENIEC).
|Registration Body||Public Registry||Public Registry and Supervisory Council on Foundations||Peruvian Agency for International Cooperation|
|Barriers to Entry||Lack of uniform registration criteria||N/A||N/A|
|Barriers to Activities||Excessive government control under International Cooperation Laws|
|Barriers to Speech and/or Advocacy||Government is hostile to unpopular groups|
|Barriers to International Contact||Excessive government control under International Cooperation Laws|
|Barriers to Resources||Excessive government control under International Cooperation Laws|
|Barriers to Assembly||Advanced notification required for “political gatherings”|
|Population||31,331,228 (July 2018 est.)|
|Type of Government||Constitutional Republic|
|Life Expectancy at Birth||72.1 years (2018 est.); 76.4 years (2018 est.)|
|Literacy Rate||Male: 97.2% (2016 est.); Female: 91.2% (2016 est.)|
|Religious Groups||Roman Catholic 60%, Christian 14.6% (includes evangelical 11.1%, other 3.5%), other .3%, none 4%, unspecified 21.1% (2017 est.)|
|Ethnic Groups||Mestizo (mixed Amerindian and white) 60.2%, Amerindian 25.8%, White 5.9%, African descent 3.6%,Other (includes Chinese and Japanese descent) 1.2%, Unspecified 3.3% (2017 est.).|
|GDP per capita||$13,500 (2017 est.)|
Source: The World Factbook. Washington, DC: Central Intelligence Agency.
|Ranking Body||Rank||Ranking Scale|
(best – worst possible)
|UN Human Development Index||89 (2018)||1 – 187|
|World Bank Rule of Law Index||33 (2018)||100 – 0|
|World Bank Voice & Accountability Index||55 (2018)||100 – 0|
|Transparency International||105 (2018)||1 – 180|
|Freedom House: Freedom in the World||Status: Free|
Political Rights: 2
Civil Liberties: 3 (2019)
|Free/Partly Free/Not Free|
1 – 7
1 – 7
|Foreign Policy: Fragile States Index||99 (2019)||178 – 1|
International and Regional Human Rights Agreements
|Key International Agreements||Ratification*||Year|
|International Covenant on Civil and Political Rights (ICCPR)||Yes||1978|
|Optional Protocol to ICCPR (ICCPR-OP1)||Yes||1980|
|International Covenant on Economic, Social, and Cultural Rights (ICESCR)||Yes||1978|
|Optional Protocol to ICESCR (OP-ICESCR)||No||—|
|International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)||Yes||1971|
|Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)||Yes||1982|
|Optional Protocol to the Convention on the Elimination of Discrimination Against Women||Yes||2001|
|Convention on the Rights of the Child (CRC)||Yes||1990|
|International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)||Yes||2005|
|Convention on the Rights of Persons with Disabilities (CRPD)||Yes||2008|
|American Convention on Human Rights||Yes||1978|
|Additional Protocol to the Convention on Human Rights in the Area of Economic, Social, and Cultural Rights “Protocol of San Salvador”||Yes||1995|
* Category includes ratification, accession, or succession to the treaty
Article 2 ¶13 of the Constitution of Peru recognizes the right of every person to join and establish foundations and various forms of legally recognized non-profit organizations, without prior authorization in accordance with the law. In addition, the Constitution stipulates that these organizations cannot be dissolved by administrative decision.
Peru’s Constitution also recognizes, among other internationally recognized rights:
- the right to equality before the law (no person should be discriminated against because of origin, race, sex, language, religion, opinion, economic status or any other factor) (Article 2 ¶2);
- freedom of conscience and religion, individually or collectively (no one may be persecuted for their ideas or beliefs, or opinion) (Article 2 ¶3);
- freedom of information, opinion, expression and dissemination of ideas through spoken or written word or image, by any media, without prior authorization or censorship or impediment (Article 2 ¶4);
- the right to privacy, and the inviolability of one’s communications and documents (Article 2 ¶¶ 7 and 10);
- freedom of contract (Article 62);
- property rights (Articles 70-73);
- the right to participate, individually or collectively, in the political, economic, social and culture of the Nation (Article 2 ¶17); and
- the right to freedom of peaceful assembly is also protected by Article 2 of the Constitution, section 12, which states that “Every person has the right to gather peacefully without arms”.
National Laws and Regulations Affecting Sector
As a unitary State, Peru has a national legal framework that follows the civil law tradition. Civil society organizations (CSOs) are primarily regulated by the Civil Code.
Relevant laws, many of which are in ICNL’s Online Library, include:
- Civil Code of 1984. Código Civil Peruano de 1984. Derecho de las Personas, Sección Segunda: Personas Jurídicas, Artículos 76 al 139
- Law of International Technical Cooperation. Ley de Cooperación Técnica Internacional: Decreto Legislativo No. 719 (noviembre 1991). Modificada parcialmente por el Decreto Legislativo Nro. 1451 (septiembre 2018). Reglamento aprobado por: Decreto Supremo Nº 015-92-PCM (enero 1992).
- Decreto Supremo Nº 130-2018-PCM (diciembre 2018) sobre ratificación de procedimientos administrativos en diversas entidades pública. Elimina los procedimientos de renovación en los registros de ONGD (Ongs locales) y ENIEX (entidades extranjeras de cooperación técnica internacional) de APCI.
- Law on the Creation of the Peruvian Agency for International Cooperation. Ley de Creación de la Agencia Peruana de Cooperación Internacional: Ley No. 27692 (abril 2002) modificado parcialmente por el Decreto Legislativo Nro. 1451 (septiembre 2018)..
- Directives of APCI for the registration and Renewal of the Registries of NGO and ENIEX before APCI: Resolución Directoral Ejecutiva Nro. 067-2011-APCI-DE, modificada por las RDE Nros. 085-2015-APCI/DE, 068-2016-APCI/DE, 073-2016-APCI/DE y 130-2016-APCI/DE
- Income Tax Law. Texto Unico Ordenado de la Ley del Impuesto a la Renta. Decreto Supremo No. 179-2004-EF (diciembre 2004). Artículo 19 inciso b) modificado por Decreto Legislativo No. 1120 (julio 2012) y normas modificatorias.
- Ampliación de plazo exoneración Impuesto a la Renta en favor de asociaciones y fundaciones hasta el 31 de diciembre del 2018 (Artículo 19 inciso b Ley Impuesto a la Renta): Ley N° 30404 (diciembre 2015). Mediante Ley Nro. 30898 (28 de diciembre del 2018) se amplió la exoneración del Impuesto a la Renta a favor de asociaciones sin fines de lucro y fundaciones hasta el 31 de diciembre del 2019.
- General Sales Tax Law. Texto Unico Ordenado de la Ley del Impuesto General a las Ventas e Impuesto Selectivo al Consumo: Decreto Supremo No. 055-99-EF (abril 1999) y normas modificatorias
- Refund of General Sales Tax and Municipal Promotion Tax. Reglamentan la aplicación del beneficio tributario de devolución de impuestos pagados en las compras de bienes y servicios efectuadas con financiación de donaciones y Cooperación Técnica Internacional No Reembolsable: Decreto Legislativo No. 783 (diciembre 1993). Reglamento aprobado por Decreto Supremo No. 36-94-EF (abril 1994). Ley N° 30404 (diciembre 2015) amplia beneficio hasta el 31 de diciembre del 2018. Mediante Ley Nro. 30899 (29 de diciembre del 2018) se prorroga hasta el 31 de diciembre del 2019 este beneficio tributario.
- Law on Facilitation of the Dispatch of Goods Donated from Overseas. Ley de facilitación del despacho de mercancías donadas provenientes del exterior:Ley No. 28905 (noviembre 2006). Reglamento: Decreto Supremo No. 021-2008-EF (febrero 2008)
- Ley General de Aduanas: Decreto Legislativo Nº 1053 (junio 2008) Reglamento: Decreto Supremo Nro. 010-2009-EF (enero 2009). Modificado parcialmente por la Ley N° 30498 (agosto 2016) en lo relativo a la inafectación a importación de bienes donados
- Regulation on the Inapplicability of VAT/GST and Excise Tax to Donations. Aprueban Reglamento para la Inafectación del IGV, ISC y derechos arancelarios a las Donaciones: Decreto Supremo No. 096-2007-EF(julio 2007). Modificado por Decreto Supremo N º 54-2017-EF (marzo 2017)
- Ley que promueve la donación de alimentos y facilita el transporte de donaciones en situaciones de Desastres Naturales: Ley Nro. 30498 (Agosto 2016). Modifica la Ley del Impuesto General a las Ventas en lo relativo a importación y transferencia de bienes donados (Art. 2 inciso K) y la Ley del Impuesto a la Renta (Art. 37 inciso x.1.) en lo relativo a deducibilidad gastos donaciones de alimentos. Decreto Supremo Nro. 055-2017-EF: Reglamento de la Ley Nro. 30498 (Marzo 2017).
- Ley que amplía el límite de deducibilidad de gastos por concepto de donaciones de alimentos en buen estado para efectos del Impuesto a la Renta: Ley Nº 30631 (agosto 2017, en vigencia a partir del 1 de enero del 2018).
- Regulation on Registration of Legal Persons: Reglamento de Inscripciones del Registro de Personas Jurídicas:Resolución de Superintendente Nacional de los Registros Públicos No. 038-2013-SUNARP-SN (febrero 2013)
Other regulatory measures include:
- Directive 0009-2015-ONAGI sobre Otorgamiento de Garantías Inherentes al Orden Público (on Specific Aspects Granting Guarantees on Public Order);
- Law on Transparency and Access to Public Information: Law 27806;
- Decreto Legislativo No. 1353 on Modifications to the Law of Transparency and Access to Public Information and Creation of National Public Authority for that Purpose (January 2017);
- Ley de Organizaciones Políticas: Law 28094 y normas modificatorias (2016);
- Ley General de Elecciones: Law 26859 y normas modificatorias.
Lavado de Activos (Laundering Activities) are regulated by the following:
- Decreto Legislativo de lucha eficaz contra el lavado de activos y otros delitos relacionados a la minería ilegal y crimen organizado: DECRETO LEGISLATIVO Nº 1106 y normas modificatorias;
- Ley que crea la Unidad de Inteligencia Financiera – Perú: LEY Nº 27693. Reglamento aprobado por Decreto Supremo Nro. 020-2017-JUS;
- Ley Aprueban la Norma para la Prevención del Lavado de Activos y Financiamiento del Terrorismo, de aplicación general a los sujetos obligados a informar que carecen de organismos supervisores : RESOLUCION SBS Nº 486-2008 y normas modificatorias.
- Modifications in Resolutions of the Superintendency of Banking and Insurance and AFPs regarding Money Laundering, including RESOLUTION SBS No. 486-2008 and amending regulations, which are repealed by SBS Resolution No. 789-2018 (February 28, 2018) on Standard for the Prevention of Money Laundering and Terrorist Financing Applicable to Obligated Parties under the Supervision of the UIF-Peru; and RESOLUTION SBS No. 369-2018 (January 31, 2018) which Approves the Standard for the Prevention of Money Laundering and Terrorist Financing Applicable to those Obligated under the Limited System of Prevention of Money Laundering and Terrorist Financing and Applicable to Non-profit Organizations (NPOs) that collect, transfer and disburse funds, resources or other assets for charitable, religious, cultural, educational, scientific, artistic, social, recreational or solidarity purposes or purposes or for the realization of another type of actions or altruistic or charitable works, as long as they do not provide credits, microcredits or any other type of economic financing.Please note that there are three important websites that have an updated and detailed section of legislation:
Pending NGO Legislative / Regulatory Initiatives
1. In July 2009, after violent clashes between civil society groups and the army in the north of the country, legislation was proposed that would expand the powers of the Peruvian Agency for International Cooperation (APCI), which regulates funding to NGOs. It remains unclear whether there is enough support to see the legislation passed in Congress, if and when it is ever presented to the full Congress for a vote. However, there is a widespread belief among many government officials that civil society must be more tightly supervised and controlled by the State.
2. An issue of concern is the system for the prevention of money laundering and financing of terrorism (SPLAFT) that is applicable to not-for-profit organizations (NPOs). In Peru, NPOs must report to the Intelligence Unit of Peru-UIF and must implement a limited SPLAFT, which aims to prevent their funds from being used for illicit purposes. In the case of NPOs that provide credit, microloans, or any other type of economic financing, they must implement a general SPLAFT. In Peru, the National Plan against Money Laundering and the Financing of Terrorism 2018-2021 (Supreme Decree No. 003-2018-JUS, March 2018) has been approved, as well as the Annual Supervision Plan of the Peruvian Agency for International Cooperation-APCI 2018 (approved by Executive Director Resolution N ° 080-2018 / APCI-DE, June 2018). Among other objectives, they require supervisory actions under the risk prevention approach for money laundering and financing of terrorism. More detail on NPO Good Practices in this topic can be found in SBS Bulletin 67-2018. According to the National Risk Assessment of money laundering and financing of terrorism, which was conducted in November 2016, NPOs must execute a risk analysis that focuses on and/or identifies NPOs that may actually be vulnerable to engage in money laundering and financing of terrorism. It is important therefore for NPOs to be involved in the process of mutual evaluation that on this subject, which is still is in process in Peru.
3. Peru has made legal modifications in order to establish a limited regime for preventing money laundering and terrorism by not-for-profit organizations. However, according to the evaluation carried out by El Grupo de Acción Financiera de Latinoamérica (GAFILAT) in 2018, Peru’s efforts were not sufficient. The GAFILAT Mutual Evaluation Report for Peru regarding measures against money laundering and financing of terrorism concluded that: a) Peru has not yet done a risk analysis of the non-profit organizations that identifies which subgroup of organizations is framed within the definition of the non-profit entity of the Financial Action Task Force (FATF) and has not used all available information resources in order to identify the characteristics and types of nonprofit organizations that, according to their activities or characteristics, have a probable risk of abuse for the Financing of Terrorism. b) Peru has not identified the nature of the threats posed by terrorist entities to non-profit organizations that could be at risk, as well as the way in which terrorist actors could abuse these organizations.” Therefore, Recommendation 8 of GAFILAT considered Peru to be “Partially Compliant.
The Mutual Evaluation Report of GAFILAT was published on March 21, 2019. Improvements to the legal regulations related to this issue were still ongoing as of July 2019. Nevertheless, APCI has approved the Annual Supervision Plan 2019 (Resoluciòn Directoral Ejecutiva Nro.044-2019/APCI-DE of April 1, 2019), which is applicable to NGOs and ENIEX registered by APCI. This Supervision Plan includes, among its objectives, to carry out supervisory actions for risk prevention of money laundering and terrorist financing in compliance with the functions assigned to APCI as the supervisory body of not-for-profit organizations registered in its registries.
The legal forms of civil society organization (CSOs), or non-profit legal entities, regulated by the Civil Code in Peru include the association, the foundation, and the committee. The most common classification is the association, while the committee is the least used classification due to its specific and temporary duration.
According to the Civil Code, an association is legally defined as “an organization established by two people or legal entities or both, that through a common activity pursue a non-profit objective,” and may define a public or social purpose. Thus, an association could be a beach club, cultural group, or philanthropic entity.
A foundation, on the other hand, is defined in the Civil Code as a “non-profit organization established by the assignment of one or more legal or natural personalities to accomplish objectives that are of religious, cultural, welfare, or other social interest.” In addition, an initial contribution of money or property is a prerequisite to establishing a foundation. Since the purpose of a foundation must be social in nature, private interest groups seeking to obtain benefits for themselves are not allowed to form this legal entity. Foundations are established less often than associations because there are many drawbacks, including being subject to more state control and supervision.
Associations in Peru are free to pursue any lawful mutual or public benefit purpose. Foundations, on the other hand, must pursue religious, aid-based, or cultural objectives, or other objectives of social interest. The Civil Code does not define the term “social interest.”
A non-governmental organization, or NGO, is a not-for-profit organization that receives a special designation as an NGO because it engages in “international technical cooperation” activities that are related to the receipt of foreign funding. However, there is no legal identification for NGOs, so they are considered de facto civil associations.
Public Benefit Status
Associations and foundations are not automatically exempt from income tax payments. Instead, they must apply to the Peruvian Tax Agency (Superintendencia Nacional de Administración Tributaria-SUNAT) and register with the Register for Income Tax Exempt Entities (Registro de Entidades Exoneradas del Impuesto a la Renta). In practice, this tax exemption is quite restrictive and difficult to obtain.
However, qualifying CSOs can receive benefits from income tax in the following ways:
1. Immunity- For foundations, the following exclusive purposes are not subject to income tax: culture, advanced research, charity, social and medical assistance, and social benefits for company employees (Article 18 Subsection c of the Income Tax Law).
2. Exoneration- For associations and other types of foundations (not eligible for the above immunity), a temporary exoneration (Article 19(b) of the Income Tax Law) is established by Law No. 30404, which was published on December 30, 2015 and extended until December 31, 2019 (Law No. 30898, December 28, 2018), “if they comply with the following requirements: (i) exclusive pursuit of the following purposes: charity, social assistance, education; cultural, science, art, literature, athletics, politics, union/trade-unions or housing; (ii) the qualifying activities are carried out within Peru; (iii) no distribution, directly or indirectly, among the associates or members; and (iv) the organization’s governing documents must state that, in the event of dissolution, assets must be directed to any of the purposes included in this article.” The requirement that an organization include the dissolution provision in its governing documents does not apply to those organizations registered in APCI’s Registry of Foreign Organizations or Institutions of International Technical Cooperation (ENIEX).
Article 19(b) of Decreto Legislativo No. 1120 (in force from January 1, 2013) was modified to be more precise on issues related to the non-distribution of incomes directly or indirectly to associates or members or linked parties. It also establishes what the Tax Administration (Superintendencia Nacional de Administración Tributaria-SUNAT) will consider to be indirect distribution of incomes, such as the delivery of money and goods not subject to subsequent tax control. If the SUNAT verifies that an entity distributes, directly or indirectly, incomes, then the SUNAT will exclude (“dar de baja”) the entity from the Income Tax Exemption Registry and will cancel the resolution of the entity eligible to receive tax-deductible donations. The foundation or association will not be eligible for the income tax exemption in that taxable year or the following taxable year, but after two taxable years, the entity can submit a new registration before the Tax Administration.
Associations and foundations that do not qualify for either immunity or exoneration of income tax are taxed as corporations based on their net income (annual fee). Per Legislative Decree No. 1261 of December 10, 2016 on the Modifications to the Income Tax Law, the new rate for corporations and taxpayers of the “third category” (rentas empresariales) is 29.50%. This new rate entered into force on January 1, 2017.
Barriers to Entry
The Civil Code offers very little regulation of associations. As a result, there is a margin of interpretation and discretion for the Public Registry in each jurisdiction. In fact, the criteria for registration vary between each registrar. To address this problem, the Full Court of Registration adopted mandatory procedures based on precedent, which are published in the Official Diary, “El Peruano.” However, the Register of Non-Corporative Legal Entities (“ Reglamento de Inscripciones del Registro de Personas Jurídicas No Societarias”: Resolución de la Superintendente Nacional de los Registros Públicos No. 086-2009-SUNARP-SN), which contains regulations on registration of not-for-profit organizations, was modified and replaced by a new regulation on registration of legal entities called “Reglamento de Inscripciones del Registro de Personas Jurídicas”, which was approved in February 2013. This regulation addresses various aspects related to the registration procedures of not-for-profit organizations in Peru and regulates the acts related to registration, including:
a) The constitutive act of the legal entity, its bylaws, and its modifications;
b) The recognition of a legal entity registered abroad;
c) The establishment of branches and any registrable act linked to them;
d) The appointment of members of social organs, liquidators, and the other representatives or proxies and the acceptance, removal, suspension, resignation, granting of powers, modification, revocation, substitution, delegation and resumption of them as well as other acts included in its regulations;
e) The merger, transformation and other forms of reorganization of legal entities;
f) The dissolution and agreements of the liquidators and the extinction of legal entities.
On the other hand, regarding NGOs and ENIEX, in May 2015 APCI issued the Resolución Directoral Ejecutiva N° 085-2015-APCI-DE, which modified the requirements for renewal of the registration of NGOs and ENIEX. As a result, these entities had to be supervised by the APCI when they used resources that were considered to be International Cooperation Non-Refundable (CINR). Furthermore, an amendment to the Resolución mandated that NGOs and ENIEX must comply with the APCI’s monitoring and have a current RUC (Registro Unico de Contribuyente). On December 2016, however, APCI issued Resolución Directoral Ejecutiva Nº 130-2016/APCI-DE, which eliminated the requirements for NGOs and ENIEX to be supervised by APCI and to comply with the recommendations made as a result of the supervisory actions of APCI (that were established by Resolución Directoral Ejecutiva Nº 085-2015-APCI-DE). With the passing of Supreme Decree No. 130-2008-PCM (December 2018), the renewal procedures of the registries of local NGOs and ENIEX by APCI have been eliminated and, therefore, one-time registration will last indefinitely. In compliance with this legal norm APCI has removed from its website the Registers Section, which was the item related to Renewal of Registries for NGOs and ENIEX, and in practice it has proceeded to notify registered organizations of the legal changes.
Barriers to Operational Activity
The most important legal barrier that NGOs have recently faced is the excessive control of resources administered by the Peruvian Agency for International Cooperation (APCI). Under the legal framework, NGOs or any other group subject to the supervision and control of APCI must, among other responsibilities, provide extensive reporting about planned activities, sources of funding, and other financial details.
Although a limited regime for the prevention of money laundering and terrorist financing for not-for-profit entities that do not carry out financing activities has been established in Peru, the regulation related to this issue should be improved so that such regulation does not constitute an excessive burden (not proportional, according to FATF/GAFI Recommendation 8). In this regard the Mutual Evaluation Report (Informe de Evaluación Mutua del Perú) of GAFILAT published in March 21, 2019 concluded that Peru has not done a risk analysis of not-for-profit organizations that identify which organizations are vulnerable to the abuses of terrorist financing and money laundering, in accordance with FATF (GAFI) Recommendation 8. (See Section Pending NGO Legislative/Regulatory Initiatives for more details.)
Barriers to Speech / Advocacy
Although Peruvian law does not prohibit CSOs from engaging in activities linked to politics or lobbying or other activities that might influence public policy, there has been a continuous effort by state and non-state actors to silence unpopular groups.
Former President Fujimori’s supporters in Congress, as well as some top government officials, have aggressively sought to discredit CSOs that advocate for human rights accountability. In addition, according to Human Rights Watch in 2019, “threats to freedom of expression continue to be a concern in Perú.”
Barriers to International Contact
There are no legal restrictions to international contact. As explained in the following section, however, there are barriers to resources from external sources.
Barriers to Resources
The most controversial issue in Peru between civil society and government relates to the scope of supervision and control by the state through the Peruvian Agency for International Cooperation (APCI) of domestic and foreign organizations that finance or implement projects using international technical cooperation resources. Before the issuance of Law No. 28925 in 2006, which modified the Law for the Creation of APCI, it was understood that registration with APCI was mandatory only for organizations that engaged in international technical cooperation (receiving funding from foreign sources) channeled through state agencies in exchange for access to certain tax benefits. Law No. 28925 expanded APCI’s power to regulate organizations that manage international cooperation without state involvement but that enjoy any privilege, benefit, or tax exemption or use in any form state resources, or where the original cooperating entity is from a country that is a party to a bilateral or multilateral agreement with Peru.
In addition, Law No. 28925 provides that registration with APCI “is mandatory to implement international technical cooperation, regardless of the legal nature of the cooperating source.” Law No. 28925 drew widespread criticism domestically and internationally. Critics charged that the law violated basic fundamental rights: namely the freedom of association, the freedom of privacy, and equality of law, among others. As a result, two groups, including one comprised of civil society representatives and one comprised of legislators, lodged two separate constitutional lawsuits in 2007. The combined lawsuits were settled by the Constitutional Court of Peru when it struck down several provisions of the law but upheld the majority of the law. The most important part of the ruling for civil society was the Court’s finding that registration with APCI is not obligatory for those organizations that do not accept any state benefits or use any state resources. In practice, however, opting out may not be that simple because nearly every organization utilizes state resources in some manner. The law also fails to define terms such as “state resources,” which gives the government wide discretion to exercise control over numerous organizations.
Barriers to Assembly
Article 2, section 12 of the Constitution protects the right to freedom of peaceful assembly (“Every person has the right to gather peacefully without arms”). To date, however, no specific Peruvian law regulates the right of assembly. That said, the Ministry of Interior requires organizers of “Public Gatherings (meetings, marches, parades, processions, feasts and religious services)” to comply with advance notification requirements, as described in the “Advance Notification” section below. This was stipulated by Directive 04-2011-10-1501 (“Provisions pertaining to the granting of guarantees for public gatherings, sporting and non-sporting public shows, and social events”), which was approved by Directorial Resolution number 2492-2011-IN-1501 on April 12, 2011. The Directive was updated by the new Directive 0009-2015-ONAGI “Sobre Otorgamiento de Garantías Inherentes al Orden Público (on Specific Aspects Granting Guarantees on Public Order).”
On December 7, 2005 the Constitutional Court issued a judgment (Petition for Constitutional Relief dossier number 4677-2004-PA/TC-LIMA-Confederación General de Trabajadores del Perú), in which the Court proposed “to the Congress of the Republic, the issuance of a law to regulate the exercise of the right to assembly; indication of the authority with jurisdiction over the matter, which authority shall receive advance notices for meetings held in public squares and thoroughfares, and notify of just causes used to restrict or forbid the holding of a meeting, the setting of limits to a meeting, et cetera, taking the Conclusions of this judgment in due consideration.”
In Conclusion #14 of the Constitutional Court’s judgment, the right of assembly is defined as “every person’s faculty to gather with others, in a specific place, temporarily and peacefully, without need of prior authorization, for the shared purposes of freely presenting and/or exchanging ideas or opinions, defending their own interests, or agreeing on joint actions.” After this judgment, Bill 2222/2007/CR, or “Bill of an Act to Regulate the Exercise of the Freedom of Assembly” was discussed during the legislative term from 2006-2011, but it was finally dropped in September 2011.
In light of the absence of a developed legal framework for assemblies, the below highlights some of the key existing barriers.
Under the Peruvian Constitution, the following general criteria apply to the exercise of the right of assembly for “political gatherings”:
1) The right of assembly shall be exercised peacefully and without arms;
2) No advance notice is required for meetings held in private buildings, or meetings open to the public; and
3) The right of assembly in public squares and thoroughfares does not require prior Authorization, but [only] that advance communication or notice be given to the authorities.
That said, the Ministry of Interior requires organizers of “Public Gatherings (meetings, marches, parades, processions, feasts and religious services)” to comply with advance notification requirements. This is regulated by Directive 04-2011-10-1501 (Provisions pertaining to the granting of guarantees for public gatherings, sporting and non-sporting public shows, and social events), which was approved by Directorial Resolution number 2492-2011-IN-1501 of April 12, 2011. The Directive was updated by the new Directive 0009-2015-ONAGI “Sobre Otorgamiento de Garantías Inherentes al Orden Público (“on Specific Aspects Granting Guarantees on Public Order”)”. This Directive states the following regarding notification requirements for “public gatherings”:
In the case of “political gatherings,” the petitioner or legal representative of the organizing institution must submit and sign a written document, in a specific format, two (2) working days before the gathering takes place.
In the case of other non-political “public gatherings,” the petitioner or legal representative of the organizing institution must submit and sign a written document, in a specific format, three (3) working days before the gathering takes places. The petition must include information about the petitioner (name and family names of the individual petitioner, or that of the legal representative of the organizing institution), personal identity card number, domicile and phone number; and the institution’s name, plus information about the gathering itself (date, beginning time, end time, place, route and pre-gatherings [attaching a map or sketch]), the approximate [expected] number of participants, and further information, specific to the gathering in question.
In both cases a “commitment document” must also be submitted (in a specific format) and signed by the legal representative of the petitioning organization stating that a commitment is undertaken that the public gathering referred to in the petition will: “take place without altering public order, interfering with or hindering normal transit, and without causing damages to property, either public or private; and liability is assumed that no arm, device, explosive or flammable material will be carried, and no blunt objects will be carried. [The signer] assumes criminal liability as appropriate.”
Should public authorities fail to respond specifically to the petition within a given period of time, then the petition must be deemed denied (negative administrative silence), and the petitioner may file an administrative remedy, as appropriate, either as a motion for reconsideration (before the same authority) or as an appeal (to a higher authority). The term for administrative remedies is fifteen (15) working days, and the term for a decision is thirty (30) working days.
Thus, according to this directive, “spontaneous assemblies” are considered to be an administrative issue requiring prior notice or communication to the authorities to ensure public order, security, or protection of property.”
Article 359 of the Electoral Organic Act (Act number 26859) states that, “The occurrence of more than one demonstration in a public place within one single city is hereby forbidden, except for places separated by more than one kilometer. Decisions in this regard will be made by the appropriate political authority, which will set an order of preference in keeping with the order notices were received.”
In Peru, the use of force by authorities is regulated by the following main regulations:
a) Legislative Decree No. 1095, which establishes rules for the use of force by the Armed Forces in the national territory (August 31, 2010), “limits for the use of force by the Armed Forces in compliance with their constitutional function, through the use of their potential and coercive capacity for the protection of society, in defense of the State of Right and in order to ensure peace and internal order in the national territory.”
b) Legislative Decree No. 1186, which regulates the use of force by the National Police of Peru (August 2015) in compliance with its constitutional purpose. According to this regulation, the use of force by the personnel of the National Police is based on respect for fundamental rights and the concurrence of the following principles: legality, necessity and proportionality.
According to the Report Freedom of the World (2018) for Peru by Freedom House: “Local disputes and protests are often related to extractive industries, land rights, and resource allocation among marginalized populations (…)”.
In relation to this issue, according to the April 2019 Report of Social Conflicts of the Ombudsman’s Office, 184 social conflicts were reported, 64.70% of which were socio-environmental. Regarding social protest, the report stated that 115 collective protest actions were registered nationwide in the month of April 2019.
|UN Universal Periodic Review Reports||UPR Peru|
Compilation of UN information
Summary of stakeholders’ information
Report of the Working Group
Decision on the Outcome
Draft Report on the eighth session of the Human Rights Council
|http://mesadearticulacion.org/||This website refers to a group composed of 17 local associations and 5 regional networks of NGOs from Latin America that search for a common agenda about civil society organizations. The website contains important updates and reports about the legal framework, access to financing and other news about civil society organizations|
|Reports of UN Special Rapporteurs||Peru|
|USIG (United States International Grantmaking) Country Notes||USIG: Peru|
|U.S. State Department|