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Peru: President Enacts Decree Changing Requirements for Foreigners Convicted of Crimes to Serve Sentences Abroad

(Jan. 31, 2020) On January 23, 2020, the president of Peru, Martín Vizcarra, with the approval of the Council of Ministers, enacted Emergency Decree 018-2020 to change the prerequisites for foreigners to serve a Peruvian criminal sentence in their own country. (Decreto de Urgencia 018-2020 (DU 018-2020) que Optimiza  los Criterios y Requisitos para que los Internos e Internas de Nacionalidad Extranjera Cumplan su Condena en un Establecimiento Penitenciario del Exterior o Sean Enviados a su País.)

The provisions of the Decree aim to address the overcrowding in Peru’s prison facilities by both easing the way for convicted foreigners to serve their sentences in their own countries and speeding up current delays in the application and execution of requests submitted by foreigner inmates to leave the country, which are mostly due to the demand for the payment of civil reparations and fines.

According to official statistics, the National Penitentiary System has a capacity of 39,323 individual units nationwide. However, the prison population currently exceeds 95,000, which amounts to 143% overcrowding.

Specifically, the Decree amends article 542 of the Code of Criminal Procedure to allow foreigners convicted of a crime in Peru to serve the sentence abroad if all accessory sanctions, such as fines and civil damages reparation, have been fulfilled, through either payment or guarantee thereof.  If the state is the only affected party, the payment or guarantee of economic accessory sanctions is not required. However, under the amendment, the state is not precluded from claiming the debt in the future.

The Decree also amends article 6 of Law No. 30219, which regulates the special benefit granted to foreigners to leave the country and serve the prison sentence abroad. The amended provision now provides that for a foreigner to be granted the special exit benefit, the following conditions must be met:

  • When the victim is an individual, the convicted foreigner must prove that civil damages or fines derived from the criminal sentence have been paid or sufficient guarantees of fulfillment of the payment have been provided.
  • If the only victim is the state, the convicted foreigner is not required to prove the payment or the guarantee of the civil reparation or fine. However, the state preserves the right to collect unpaid sums later on.
  • When both the state and individuals are victims, the convicted foreigner must prove only the payment or the guarantee of the civil reparation in favor of the individual victim.

If the convicted foreigner does not have the economic means to make payments or is able to substantiate humanitarian reasons, he or she may request that the court reduce the civil reparation due the individual victim or excuse the convicted foreigner from paying it.