Legal Rules and Violation of Human Rights in Peru

I. INTRODUCTION

One issue that is very modern and quite exciting for future lawyers, law students, who actually believe that the rule of law, the Constitution is the foundation of a civilized society is the one concerning respect for human rights , its not rape.

But for those who live in Latin American countries, for those who have been victims of abuse by the state and its authorities, it is difficult to believe in the rule of law that both lawmakers and politicians speak their boring speeches square in eve of general elections.

This work showed as in Peru are violated people's human rights, it disrupts their lives, they are destroyed and there is no sanction for the Peruvian government officials who committed crimes of abuse of authority, not restored to all its rights, only those who have so much money and power enough to assert their rights in international courts.

II.-FORMS OF HUMAN RIGHTS VIOLATION

Abuse of Authority, is one of the forms of systematic violation of human rights in Peru.

Many will say that it is true that in Peru, human rights are respected, that the country has changed, but not true and I will prove in this paper, we will see it is: "violation of human rights."

If the country would have changed would be justice for all equally, and would restore their rights to people who were deprived of them, so abusive and violating the legal order.

The website of the judiciary in Peru says:

Abuse of authority:

Def. 1: Arbitrariness committed in the exercise of powers functional

hierarchical administrative or refusing to do, slow or exceed the authority given to their position or function, hurting under their authority

Peru's Penal Code establishes penalties for officials who commit this crime, but they are so small that most feel tempted to commit arbitrary, if people can destroy them, private institutions, to gain a bribe under the table given by the enemies of the victim.

PENAL CODE OF PERU III.The

Says the Criminal Code of Peru:

1.-ABUSE OF AUTHORITY. Offense. 376. CP

Article 376 °.

The public official who, abusing their powers, commits or orders, to the detriment of anyone, any arbitrary act shall be punished with imprisonment not exceeding two years.

When the facts arising from enforced collection proceedings, the penalty shall be not less than two nor more than four years.

As we can see, the penalty is minimal, does not suffer any prison officer, so that you can prove to the judge the evil committed against him, the transgression of the law. "

IV.-AN? ANALYSIS OF THE CRIME OF ABUSE OF AUTHORITY

1.-legally

Specifically is the legality of official action that is affected. It is intended that public officials exercise their authority vested with powers or powers without infringing the rights of individuals.

From what point is to preserve the regularity of the functioning of public administration, the legality of administrative acts.

Following Núñez, Fernando? Angeles Gonzales, Manuel Frisancho criminal Aparicio.Codigo said. VII. Juridicas.lima 1998 editions. p.3208, states that the offenses provided by this section represent an injury to the

public service, involving an arbitrary exercise of the public, regardless of the constitutions, laws and duties that govern it.

By protecting a generic and art. 376 the normal development of public administration and specifically the legality of the official functional exercise is being provided by concomitant effect, protecting people is perjudicadas.Se then reminds us that Manzini, a double guarantee : the state and individuals against public officials. Rojas Vargas, Fidel.Delitos against public administration. Grijley. Lima.1999.p.90

The reason for the inclusion of an offense so broad (and therefore of dubious constitutionality) seems to lie in the desire to avoid gaps. Through this abuse unnamed legislator intended to cover those cases that can not be understood by the types of "specific abuse" (extortion, extortion, embezzlement, etc.)..

So it is said, too, that this type of "abuse unnamed" only have an extra application: when the other assumptions specific abuses of authority are not applicable. Abanto Vasquez, Abanto. Crimes against public administration in the Peruvian Criminal Code. Palestra.2001.p.180.

2 .- Type purpose

2.1 .- Active Subject

They can only be public servants.

Individuals are partakers or accomplices.

To carry out the type, the offending officer should act within the scope of their duties.

For Manuel Vasquez Abanto, if the officer commits functions not competent to the event would be usurpation of functions, it is the misuse of the authority granted the function exercised by the officer. Abanto. p.184

2.2 .- A taxable person

Is the majority's statement identifying the state as a passive subject who, through government, becomes the holder of the regularity and legality of the civil service. But also, it should rescue the injured condition in individuals who are adversely affected by the arbitrary act against individual rights (hence the term 'to the detriment of someone "), however it is not advisable to offer the quality of direct taxpayer, as some would justify, as they are not legally hold the primary, which would generate conceptual confusion between taxpayer and victim. It is peaceful in the case identifying the victim of the crime. While some failures attributed this condition to the State, others appreciate in particular the right holder

harmed. Garcia Navarro. Edgard. The crime of abuse of authority. Grijley.2007. p.59-60.

2.3 .- Typical Action

The typical action is to abuse the public powers, committing or

ordering, to the detriment of someone, any arbitrary act.

Own illegitimacy of an "abuse" consists of:

a) .- The use of powers not specifically prohibited or assigned to any

official (eg. false imprisonment, civil registrar forcing those who refuse to marry).

b) .- The use of powers granted by law, but not be exercised arbitrarily by the factual circumstances for its exercise (eg. police stops longer than necessary for persons accused of terrorism or drug trafficking).

Arbitrary action is any administrative action against the law. The act is accomplished when the official arbitraio risk parameters exceeds its function regulated by law.

Following Garcia Navarro. p.103-104, we can say that the conduct conforms operated impermissible risk function and potential to harm and become the irregularity, satisfying the objective imputation of conduct.

This increased risk of function is not more than the overreach civil service in either of two variants.

For example, the addition of acts in lieu of those required by law, as overreaching by excessive competition, creates an increased risk of function, because the overflow of powers is the risk parameters of function, which is required objectively that the agent meets all the elements make for a legitimate function act.

The risk parameter of the precise standard of objective quality devoid of arbitrary, so we are the host agent, in whole or in part, and replaced by others, exceeding the risk parameter.

It is a kind of commission the act is contrary to the laws.

As for "the harm to someone," this is a peculiarity of CP Peruvian seems kind of result become a crime that is usually considered a "mere activity". And it would break with the concept of legally specified above, as if this is the operation of public administration should not be interested in a different outcome when the operation has been affected, especially if the result would be linked to a particular interest. Abanto. p.188

But the typical element need not be treated as a loss of property, but as the possibility of any deterioration in interest and rights of any person ("someone") than the official himself. So, what is usual in practice almost all abusive acts directed against people will tend to cause some harm to someone. You must also have an arbitrary relation between the act and the "harm to someone": the act must be done precisely to harm an individual. Abanto. 189

It is possible, however, that abusive acts are given without this "injury", especially when the abuse is not directed specifically against any person. These cases are not typical of "abuse of authority." Nor are cases of "abuse of authority" those cases in which the specific activity and the damage part of other specific criminal: p. for example. extortion, bribery, embezzlement, etc.. Abanto.189

Differently, Fidel Rojas, who understands the damage as a result in the sense of "injury or impairment to the interests of another person" (1st ed., P. 98), but only requires the actual production mode " making "and not required in the" command "(1st ed., p. 99).

In its latest edition, however, seems to suggest that the consummation for both modes is given with the execution of the order and the production of injury, but in the form of "order" only have imputation who gave the order and not to third parties was executed, 2nd ed., p. S. 126 and, with it actually disappears difference between the two modalities, as the "command" and would fall by "commit" (in both cases is attributable to the author of the order) and no different treatment the type for both modes, the interpretation of Fidel Rojas deal seems rather unnecessarily, the case of "order" as a "mediate authorship" (with

Performers unpunished) whereas just the "commit" would apply for

Performers of the order. France believes that the offense requires "causation" of economic or physical harm, p. 166, col. left. Abanto. p.189

We believe to be caused injury. Otherwise, the type is not performed.

3 .- Type subjective

The conduct of the agent is qualified by the direct malice, since the will is directed to cause harm. Excluding the eventual intent.

4 .- Completion

Is consumed with the commission of an arbitrary act by the agent. (Crime outcome), supported the attempt. The case of a policeman who is caught trying to place in the record of items seized were not in possession of the prisoner.

As an alternative offense, is also consumed when he gives the order to the arbitrary act is done at the expense of someone. (Crime of danger). Here it is not necessary that the order is fulfilled. At this end of the radius of the type not supported the attempt.

France notes that the typical effects of the order must be fulfilled. Following Abanto believe that this end is a simple type of activity. Abanto. p. 185

It is possible the error rate when the ignorance lies with one of the elements of the

It discusses the causes of justification, it would identify individual cases. If the law is clearly unconstitutional, there is no due obedience. Abanto, p.193

5.-Competition

Offense is a remnant. Applicable when the abuse is not the means to commit another crime. Embezzlement Ex.

If you do the injustice to other crimes, damage, injury, etc.., Applied the aggravating art. 46-A.

6.-Aggravation

When the facts arising from enforced collection proceedings

Aggravating 7.-generic. Art.376-A

With the inclusion of art. 376-A, the legislator designates a generic aggravating circumstance, which is consumed when it determines the distribution of assets for public and social programs in order to obtain political or electoral advantage.

We hold that it is a generic aggravating, because strictly speaking like real concept typical finding in some special part, playing the role of aggravating circumstances or qualified

8.-Decisions

EG-96-Exp.3436-Prov. Lambayeque

"The crime of abuse of authority requires an arbitrary act and injury to someone, if not credited these budgets should be an acquittal. In the present case has not been credited to the arbitrary act of assignment in the number of academic hours the teacher, it must acquit the processed ".

In Peru there are numerous cases of violation of human rights by the state who were aggrieved by government officials who committed arbitrary acts against them and caused them harm.

Many of these acts have been perpetrated with the support, the support of the National Police of Peru, despite the criminal charges filed with proofs, used to make "a part", but not a "Police Report" and denounce the public officials involved.

In Peru when you report to an authority to the Criminal Prosecution, this research comes to the National Police and this instance, to enforce the law asks you money. If not and the respondent offers any perks under the table, your complaint will fall on deaf ears. They develop "a part" and the Criminal Prosecution filed.

That's how you fought to be processed every day hundreds of officers who commit the crime of abuse of authority. Even if the author claims, is in its ability to work in your organization, recommend, you already have all lost because they missed a corrupt judge, to save the evil official criminal sanction, accepting of this, a Resource Exception Nature of Action ....

These resources are most used by authorities who commit these crimes, following an agreement under the table with some vocal coimero to say that the officer was just doing his duty, inescapable.

Note that in Peru the criminal justice system is free in the paper, because if you are a victim of abuse of authority, shall prosecute the crook of public administration, paying a lawyer for years fixing will go home with your money , who asked not less than 500 suns to accompany him on an errand, stripping and all your money in just two months.

Public defenders in Peru, which they say are for those who can not afford to be sponsored by a lawyer are individuals biased because his employer is the state, and not fight against anyone who feeds him. "Will a media show walking with you, but always in everything you say the party was consistent with it and try to convince you, to withdraw its petition .... ".

A criminal trial in Peru for a first sentence takes no less than three years, in the meantime you end up broke, no money, no job, and do not be surprised that the court declare the accused innocent, because you do not associate some evidence for failures process, for defects in the procedure, and so on.

The bottom line is that the aggrieved person shall suffer: loss of their heritage, their work, and do not find justice, and although they succeed, the penalty for a civil servant shall not exceed two years, so this will laughing. You can appeal the sentence, no matter asegunda instance, ie you spend almost 12 long years to achieve justice, if found.

PERU V. BETWEEN COUNTRIES MENTIONED human rights violators

Rainer Huhle Human Rights Center of Nuremberg. States that:

In recent years there have been many comments, statements, calls and comments, by the international bodies responsible for monitoring human rights, that mention not only the actions of governments but also non-state groups that use violence in pursuit of political goals. In some cases, this occurred at the express request of governments that were the subject of serious allegations of human rights violation. We can mention, among others, the cases of Sri Lanka, Kenya, Liberia, Namibia, Kampuchea, Colombia, Peru and El Salvador. The fact that, in such a way, it seemed to put on the same plane the action of governments and non-state groups because alert among organizations with great dedication and commitment, have been concerned about respect for human rights in the world .

Peru was on the list of countries that violate human rights without any problem, carried the little respect he had for human life, the rights of the individual.

To violate the human rights of people is not necessary to kill them, torture them, it can be done with: political persecution, depriving them of their property rights, business, impeding their freedom to choose their place of residence, depriving them of their right to work freely subject the law, and so on.

VI WHAT ARE HUMAN RIGHTS?

Human rights today are much more than an ideal of humanity. They are a large body of laws that require States. Its main source is, without doubt. Universal Declaration of Human Rights 1948, which however was not binding, is a statement rather than a treaty. The spirit of the Universal Declaration has been transmitted, on the other hand, a series of agreements and covenants of the community of participating States of the UN, such as the International Covenant on Civil and Political Rights 1966, Convention against Torture 1984 and many more who do are international treaties that require ratifying States to comply with them.

Nationally, most constitutions, starting with the U.S. in 1776, contains a catalog of fundamental and inalienable rights of citizens and the citizens. The criminal and administrative law, normally translate these principles into specific rules constitutions to guarantee citizens the enjoyment of their fundamental rights and to define its boundaries in a transparent and unambiguous.

International treaties are agreements between governments, as the UN itself is an organization of states. Therefore obligated by international human rights covenants are states, not individuals or private organizations. International law, by its very nature, is a right of States. From this perspective it is clear that international law also is a relevant law DD.HH. exclusively to States.

Constitutional law regulates the operation of the national state. Sets the relationship between citizens and state. The core of every democratic constitution is, therefore, a catalog of civil and political rights of citizens that the State must respect. Here, too, which is called to fulfill human rights, is the state. You must bring all their legal system, and of course their actual behavior, a full respect of human rights.

If such human rights, international and national level are linked to the right of states is not surprising that there is almost unanimity among lawyers from around the world that are essentially a normation DD.HH.'s rights people from the States and that these are the sole responsibility for complying with them and monitor their compliance. In this sense there is a list of rights and obligations "way" between state and citizens, using a term of Javier Ciurlizza. Having regard to the State as the sole legitimate representative of the common good, is he the only guarantor of the rights of its citizens, and therefore the only one that may be required in case of violation of these rights.

From this perspective, the term "violation of human rights" does not apply to a particular kind of heinous acts such as torture, forced disappearance or murder, but, strictly speaking, the commission of such acts by the State or its agents. Some theorists of non-governmental organizations in Latin America DD.HH. are emphatic in insisting on this elementary difference between what is a crime (committed by individuals) and a violation of human rights (committed by the State). Rejecting the position of his government, contrary to this difference, the authors of the "Inter-Congregational Commission for Justice and Peace" in Colombia say:

"Throughout this treatment of crime, the State retains its character as the sole guarantor of human rights (ie equal rights of all partners, referring to the same legal structure), principle on which it based its more radical legitimacy. By the same token, the state is the ONLY POSSIBLE VIOLATOR such rights. All other violations of the rules necessary for peaceful coexistence, which can be considered as the common language of human rights violations', and in the legal field have that established in other categories, in order to avoid confusion about who is responsible to guarantee them, and in order also to avoid enshrining inequality in the guarantee. "

In fact, the whole system of international law based on this principle that States are responsible for safeguarding the DD.HH. We also found American Commission on Human Rights (IACHR), in a document you are looking for ways of how Commission could give more attention to non-state armed groups to cause outrage to the enjoyment of human rights of citizens in countries where they operate. Says the Commission:

"The whole system of human rights protection is designed based on State recognition as a subject of the legal relationship in basic DD.HH. against him and is presented with complaints of violation of the rights recognized in the Convention . "

The State as a result of greater legitimacy also acquired greater responsibility for human rights. In light of these reflections are revealed as absurd the claims of the Attorney General of Colombia in its second report saying that :"... DD.HH. the state, despite its greater military force, is among the armed the only one with a legitimacy beyond doubt, because he is violating the least dd.hh. "

What are the consequences if it deviated from this principle of "vertical" (Ciurlizza) of responsibility for human rights? In answer to this question, too, the authors of the "Inter-Congregational Commission

Justice and Peace "in Colombia are dramatic. If you accept the responsibility of actors outside the government for alleged human rights violations, we would also accept a force distinct from the state to guarantee them.

"It would, then, a sort of" Legal Feudalism, "where citizens would have to find which group offers better guarantees to protect their rights, and benefit from its protection. No one can deny that there would necessarily follow the inequality of citizens before the law, the destruction of the rule of law, the distortion of the concept of human rights' and the rapid slide into barbarism. "

If the monopoly is emphasized by the State guarantee - and rape - of human rights is a step accordingly also held responsible for all the crimes committed against human rights of its citizens. These crimes, if they occur by persons other than agents of the State, are crimes and human rights violations as defined and explicit, that some of the responsibility of the actor. From the perspective of the victim, however, the effect of such crimes may be equal or worse than in the case that the State committed. For victims, this distinction is meaningless. The only way to reconcile these two perspectives is to impute to the State the responsibility for these crimes against humanity are not committed, but not prevented or punished by him. Is used, consistent with this argument, the violation of human rights by default. The torture, disappearance and so on. committed by a terrorist group are

thus defined as a crime for which the perpetrators, and also as a violation of DD.HH. by the State responsible for its citizens to enjoy these rights, did not prevent or punish crimes. Clearly puts the Chilean author Felipe Portales:

"Obviously, if the State, by default, it does the job of restoring the rule of law, would also in the presence of a violation of human rights. But the subject that would always cause the state itself and not the individual who commits the crime is not punished. "

VII.-VIOLATION OF HUMAN RIGHTS CASE IN PERU

In Peru there are many terrible cases of violation of human rights, for this purpose using repealed rules, regulations of lower rank, outdated rules, as a weapon, to ignore what they have higher standards for the good of the governed, the citizens.

Thus we see that when a foreigner in a country receives and invests it works for years and finally established, it makes sense that she wants to acquire citizenship, citizen.

Also anyone who wants to work, without disturbing the state, asking to give work, it was decided to organize the company and venture into a small business, an activity that allows you to generate income and support his family.

In both cases the aspirations of the two people that we use as an example, are legitimate.

Not only are legitimate aspirations, but they are also protected by the Constitution and laws.

But what happens when any of these people, after reaching its aims, working strictly subject to the law, the overnight are stripped, deprived of their rights, illegal resolutions issued by officials of the last hierarchical level , contrary to the provisions of Civil Service of the highest level in the country, as a Minister?

In Peru, nothing.

Hans Kelsen taught us in his book "The Pure Theory of Law", which is the hierarchy of norms, explains that in the states is a set of rules, but among them are some that are smaller and others are more.

Not all rules are the same, since issuing a Minister, is of higher rank, that issuing a Director who is under his authority.

A Director is subordinate to a Minister and nothing mas.se is a public official who heads the industry not only one direction, there are thousands.

Public officials can not decide otherwise as provided by their superiors, or issue resolutions grieve the State Constitution, violates the rule of law, laws.

A Director's Resolution is not a law was illegal in Peru's Congress, a resolution is issued by a non-Ministerial Regional Office, the Ministry issues a, a minister, someone who belongs to the Executive.

To better illustrate below provide an illustration that shows the Pyramid of Kelsen, a chart that shows clearly what is the hierarchy of the Rules.

Kelsen Pyramid-hierarchy of norms

In Peru as elsewhere in the civilized world there is a hierarchy of rules, so you can define which standards are mandatory, which take precedence over others.

In chart 1 shows that a Director's Resolution is a rule of lower rank than the law, a Supreme Decree that a Ministerial Resolution.

A country that respects human rights, the constitution and laws apply to your managed not to deprive them of their rights under the Act, a lower-level standard.

In Peru if lower-level rules apply, to ignore what has a higher standard.

Case Study 1:

Ivcher a citizen as to be stripped of its TV channel, you will nullify the national Peruvian Supreme Resolution No649 obtained in 1984 with a simple Directorial Resolution 117-97-No IN issued in July 1997, the Director of Immigration and Naturalization, the famous Colonel PNP, Victor Huaman del Solar, in which "supersedes the Peruvian nationality title" Three years later, 2,000, RM 1432-2000 not returned it.

Case Study 2

A citizen Irene Rengifo Huanín owns a private Pronoesa, which applied "placement test" to adults who left school two or more years, "as provided by the R.MNo016/96-ED, he closed his school, applying a No1957/87-ED Directorial Resolution, which stated in 1987, only state schools could apply these pruebas.Se violated human rights with the RD microentrepreneurs. No04344/2002-CTAR-L-DREL-D del07. 05.2002, signed by the Regional Director of Education Belisario Rengifo Guevara and the visa approval, the Director of Legal, Educational Management, among other public officials.

The citizens lost everything, his years of work went down the trash. Never the Peruvian state will reinstate your rights, or corrected, amended, rescinded the outrage.