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Peru: Legal Response to Covid-19

Peru [pe]

David Lovaton Palacios, Ariana Cotrina Morey, Isabella Monsante Moy, Gabriela Del Pilar Ortega Rabines, Darleen Yessenia Vincente Mauracio, Ana Lucia Campos Camargo, Vera Duque Balarezo, Chiara Jacob Camaiora

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 02 December 2022

General editors: Prof. Jeff King; Prof. Octavio Ferraz
Area editors: Prof. Tendayi Achiume; Prof. Alan Bogg; Dr. Natalie Byrom; Prof. Cathryn Costello; Prof. Nicola Countouris; Prof. Colleen Flood; Prof. Eva Pils; Prof. Nico Steytler; Dr. Silvia Suteu; Dr. Bryan Thomas; Dr. Michael Veale; Dr. Pedro A. Villarreal


© The several contributors 2021. Some rights reserved. This is an open access publication, available online and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc/4.0/. Enquiries concerning use outside the scope of the licence terms should be sent to the Rights Department, Oxford University Press.

Preferred Citation: D Lovatón, A Cotrina, I Monsante, G Ortega, A L Campos, V Duque, C Jacob, D Vicente, ‘Peru: Legal Response to Covid-19’, in Jeff King and Octávio LM Ferraz et al (eds), The Oxford Compendium of National Legal Responses to Covid-19 (OUP 2021). doi: 10.1093/law-occ19/e39.013.39

Except where the text indicates the contrary, the law is as it stood on: 31 May 2021

As of 29 August 2022, Peru reported a total of 4,102,641 confirmed Covid-19 cases and a total of 215,745 deaths.1 This data positioned Peru as the country with the highest death rate per capita, reaching 590 deaths per 100,000 inhabitants.2 So far, the country has experienced two prolonged waves of contagion. The first occurred from March to early December 2020, reaching a peak of 10,143 confirmed cases on 18 August 2020.3 The second and current wave started on January 2021 and managed to exceed 13,000 confirmed cases on 17 April 2021.4

There are several factors that explain why Peru was so severely affected by the Covid-19 pandemic. The main cause is the deficient pre-existing healthcare system, which quickly collapsed. At the start of 2020, the Ministry of Health stated that 77.8% of primary healthcare centres had inadequate capacity to provide services.5 Furthermore, when the first case of Covid-19 was reported, there were only 100 intensive care unit beds available and a total of 2,000 hospital beds that could be used for a population of 33 million people.6 Additionally, the country only had 63 medical oxygen plants, which caused shortages as the number of infected increased.7

Other factors that contributed to the severity of the outbreak were the informal labour economy and living conditions. In Peru, 70% of all workers have informal jobs, which are highly unpredictable, depend on their daily earnings, and have no social benefits, while 40% of households do not own refrigerators.8 This made social distancing measures difficult to implement, since people could not risk not working and were ill-equipped to stock up for long periods of time.

Furthermore, the country also had an unstable political climate. In 2019, then President Martin Vizcarra, within the context of the ongoing political crisis, dissolved the Congress. This meant that a new, extraordinary Congress had been elected and was due to start its mandate in March 2020, with an opposition majority. This scenario caused friction between the two branches which hindered key decision-making. Finally, corruption within the Government caused a delay in vaccine negotiations, only allowing acquisitions to be made as late as May 2021.

I.  Constitutional Framework

1.  Peru is a democratic Republic comprised of 25 regions, which are governed by a unitary—because the national Government has sovereignty—and decentralized State—although the regional organizations are subordinate to the National Government, they have the right to resolve certain matters for their territorial scope on their own—following the principle of separation of powers.9 In accordance with the current Constitution, brought into effect in 1993, the government is split into three levels—national, regional, and municipal—and three branches—executive, legislative, and judicial.

2.  The country follows a mixed model of government described as ‘weakened’ presidentialism.10 This differs from traditional presidentialism due to the adoption of several parliamentary institutions, such as the right of interpellation (urgent questions) by Parliament, the censure of ministers or cabinets, votes of no confidence, and the power for the President to dissolve Congress under certain conditions.11

3.  The President of the Republic is the head of State and head of the executive branch,12 elected every five years by obtaining a simple majority of the popular vote. On the national level, the executive branch is made up of 18 ministries and a Presidency to the Council of Ministers. On the regional and municipal levels, this branch is led by regional governors and mayors, elected every four years.13

4.  The legislative branch consists of a unicameral Congress made up of 130 representatives, chosen by preferential voting in 27 electoral districts.14 Congress holds the power to pass laws, ratify international treaties, elect officials (Ombudsman, Comptroller General of the Republic, magistrates of the Constitutional Court, Superintendent of Bank and Insurances, and three members of the Central Reserve Bank Directory) and exercise political control over the Government.15 After laws are approved, they are sent to the President for promulgation. Although the President has the power to either observe the law or have it sent back for its reconsideration, ultimately, Congress can approve it by insistence.16 In order to do so, they must have the vote of more than half of the legal number of Congress’ members.

5.  The executive branch can also pass rules that have the same status as laws through emergency and legislative decrees. The first can only be issued by the President for extraordinary measures limited to economic and financial matters.17 The second can be issued when Congress delegates legislative powers on specific issues to the executive branch.18 Nonetheless, it is mandatory to notify Congress of the decrees issued and Congress has power to control whether the decrees remain law.

6.  Additionally, the executive branch can regulate through supreme decrees and supreme and ministerial resolutions, but these have an inferior status. The regional and municipal governments have law-making powers as well, but no ordinance or decree they dictate can contradict national laws.19

7.  The division of health protection powers follows the same structure: regional and local governments have some autonomy but the central authority, the Ministry of Health, dictates public policy and mandatory measures.20 The mandatory measures issued by the regional and local governments must comply with the national legal system, this includes the Constitution, the laws, and the entire legal body issued by the executive branch.21 In addition, the National Government cannot issue mandatory measures that are part of the exclusive competences of local and regional governments.22

8.  Constitutional review is carried out by the judiciary and the Peruvian Constitutional Court, which is an autonomous entity.23 Any judge can choose not to apply a law they consider unconstitutional,24 and the Constitutional Court can derogate laws if they are declared unconstitutional.25

9.  The aforementioned constitutional framework remains unchanged since the start of the pandemic. As of May 2021, there have been no constitutional reforms or modifications implemented in response to the Covid-19 outbreak.

II.  Applicable Legal Framework

A.  Constitutional and international law

10.  On 15 March 2020, the President issued Supreme Decree 044-2020-PCM which declared a nationwide state of emergency for 15 days.26 In it, as part of the strict ‘lockdown’ measures explained in detail in Part IV below, the Government restricted the constitutional rights of personal freedom and security, inviolability of the home, and freedom of assembly and transit.27 Access to courts was not suspended, however most court proceedings were adjourned, and only those of the utmost urgency were allowed to proceed (see Part III.C below).28 Since then, the state of emergency has been extended several times, with varying restrictions.

11.  The actions taken by the Government are in accordance with Article 137(1) of the Constitution. Said article bestows upon the President the power to declare a nationwide or localized state of emergency, for a maximum of 60 days, in the event of a disturbance of the peace or of the internal order, a catastrophe, or grave circumstances that threaten the life of the nation. The only condition is that Congress is to be informed. Congress cannot review, let alone revoke the President’s declaration of emergency. Moreover, the state of emergency can be extended through additional decrees.

12.  On one hand, Article 137(1) of the Constitution authorizes the imposition of restrictions on the rights and freedoms previously mentioned (personal freedom and security, inviolability of the home, and freedom of assembly and transit) and allows for the President to call upon the armed forces for help to maintain domestic order. On the other hand, it expressly forbids the banishment of anyone under any circumstance and the restriction of any other fundamental right not listed above. Furthermore, Article 200 of the Constitution establishes that the constitutional guarantees of the writ of habeas corpus and amparo cannot be suspended during a state of emergency.

13.  In addition to the constitutional limits, states of emergency must respect the regulation imposed by international human rights treaties ratified by the country, which have been given constitutional rank by the fourth final and transitory provision of the Constitution.

14.  The two most relevant international provisions are Article 27 of the American Convention on Human Rights (ACHR), and Article 4 of the International Covenant on Civil and Political Rights. Essentially, both allow States to suspend most rights contained within them in the event of an emergency, with the exceptions of the right to life, right to humane treatment, rights of the child and family, right to a name, right to a juridical personality, right to a nationality, right to participate in government, freedom of conscience and religion, freedom from slavery, freedom from ex post facto laws, and freedom from imprisonment for debt.29 Moreover, the emergency measures must be non-discriminatory and States must guarantee access to courts. Finally, States have a duty to inform the organizations of the measures taken. In line with this, Peru has notified both organizations of its actions.30

15.  While not legally binding, it is worth noting that the Inter-American Commission on Human Rights guidelines on the protection of human rights during the pandemic were taken into account by the country.31 Furthermore, the Government has directly quoted the World Health Organization (WHO) on all decrees related to Covid-19.

B.  Statutory provisions

16.  On 11 March 2020, the Government declared a national public health emergency (Emergencia Sanitaria) for a duration of 90 days. This was done through Supreme Decree 008-2020-SA,32 following the procedure outlined by Article 7 of Legislative Decree 1156 within the legal framework of the General Health Law.33 As of April 2021, the duration of the public health emergency has been extended four times through additional decrees.34

17.  Since the pandemic began, the Government has relied almost exclusively on the powers vested on the executive branch by legislation predating the spread of Covid-19. Within the health sector, the most relevant piece of legislation is the General Health Law. This law establishes the framework for all healthcare actions taken by the State and Health Authority (the Ministry of Health). Furthermore, it states that the rights to property, inviolability of the home, freedom of transit, assembly, work, and other economic rights are subject to limitations in the name of public health.35

18.  With regard to the control of contagious diseases, Article 79 of the General Health Law states that the power to dictate mandatory prevention and control measures belongs to the Ministry of Health. Moreover, Articles 130 and 131 of the General Health Law contemplate ‘lockdowns’ (suspension of all activities deemed to be non-essential and rigid restrictions on essential activities) and quarantines as part of those security measures. Additionally, Articles 81 and 129 of the General Health Law allow the Ministry to call upon the armed forces’ help for the enforcement of said measures.

19.  This legislation must be read alongside Legislative Decree 1156, which defines what can be considered a public health emergency—a pandemic declared by the WHO is listed as one definition—and regulates the procedure for its declaration.36

20.  A piece of legislation that caused some concern during the pandemic was the regulation of the use of force by the authorities. When the state of emergency was declared in accordance with the Constitution, Article 10 of Legislative Decree 1156 authorized the police and armed forces to participate in the enforcement of ‘lockdown’ measures.37

21.  However, the intervention of these authorities and the use of force is not unrestricted. The main law regulating these powers consists of Legislative Decree 1095, which regulates the armed forces, the Constitutional Court of Peru’s Sentence 00022-2011-PI/TC, which modified said decree,38 and Legislative Decree 1186, which regulates the police. These provide that the use of force employed by the authorities must follow the principles of necessity, legality, and proportionality. In addition, they establish that the police and armed forces are accountable for any violation of human rights they commit.39

22.  Nonetheless, what raised several national40 and international41 concerns was the approval of the Police Protection Law on 27 March 2020. This law derogated from the principle of proportionality in the use of force, forbade the preliminary arrest of policemen who caused death or injury, and instated a presumption of in dubio pro policemen.42 This became particularly relevant during the period of political protests against the Government of former President Manuel Merino during which two college students were killed.43 After the incident, the General Office of Institutional Integrity of the Ministry of the Interior submitted a report on the deaths and recommended that the Ministry propose the repeal derogation of the Police Protection Law.44 Even so, as of May 2022, said law is still in effect.

C.  Executive rule-making powers

23.  Executive rule-making powers have had a preponderant role in the country’s response to the Covid-19 virus. According to the Constitution, emergency decrees (Article 118(1))45 and legislative decrees (Article 104)46 have the status of law, while supreme decrees have the status of regulation (Article 118(8))47 and the ministerial resolutions are dispositions that help supervise the general sectorial policy and have administrative effects.48 During the pandemic, the most important regulation issued by the executive branch came in the form of supreme decrees. Such regulations are approved by the highest instance of the executive branch, the President, and require the signature of at least one minister of the State.49 With regard to Covid-19 control, supreme decrees were primarily used to declare and extend a nationwide public health emergency and state of emergency, and to issue pandemic regulations. As of May 2022, the national state of emergency had been extended 24 times, for periods of 14 days up to a month. However, pandemic measures have varied in severity.

24.  Between March and April 2020, there were nine supreme decrees issued that modified the restrictions imposed by the state of emergency.50 These were mostly used to change the curfew hours or stay-at-home orders51 and allow certain economic activities to reopen.52 From May 2020 onwards, as the Resumption of Activities Strategy started, restrictions eased up, allowing more businesses to open and more freedom of transit for citizens.53 The approval of the four different phases for the resumption of activities was done through supreme decrees,54 as was any other regulation on the rights limited by the state of emergency (see Part IV below).

25.  Emergency decrees were also heavily used as part of Peru’s response to the pandemic. As mentioned, this type of decree has the same status as laws, however they can only be used to approve extraordinary measures limited to economic and financial matters. As such, during the pandemic, emergency decrees were mainly used to approve funding for several exceptional measures taken by the ministries.55 In addition, this rule-making power was used to approve economic bonuses for the vulnerable households and to approve the withdrawal of money from private pension funds (for details see Part V below).56

26.  Delegated legislative powers were likewise employed. Through Law 31011, Congress delegated legislative powers to the executive for a period of 45 days, starting on 27 March 2020. Thus, this branch was allowed to issue legislative decrees, which hold the range of statutes (laws), on the following matters: health, fiscal, and tax policy, investment policy, public safety and internal order, employment, education, protection of vulnerable groups, public services, production, and, finally, culture and tourism.57 Thanks to this attribution, the executive established sanctions for the violation of public health measures and created economic programs, amongst other things.58

27.  With regards to sector regulation, each ministry approved special Covid-19 protocols for the activities under their wing. This was done through ministerial resolutions which are a form of executive rule-making of a lower hierarchy than supreme decrees or resolutions. Within this category, Ministerial Resolution 039-2020/MINSA, issued by the Ministry of Health, is particularly important, since it published the National Plan for the Preparation and Response to the Risk of the Introduction of Covid-19.59

28.  Regional and municipal governments have also employed their corresponding rule-making powers, the ability to issue decrees and resolutions, as a way to help the implementation of public health measures within their jurisdictions.

29.  All of the aforementioned measures may be challenged in a court of law through the acción de inconstitucionalidad (writ of unconstitutionality), for emergency and legislative decrees, and the acción popular (popular action), for all other executive-issued rules.60

D.  Guidance

30.  In Peru, the majority of health measures were mostly mandatory, as explained in Part IV below. However, expert bodies also issued non-mandatory advice. This task was mainly taken on by the National Health Institute, which is a public decentralized organism of the Ministry of Health with the task of proposing and promoting public policies, laws, and scientific research.61 The National Health Institute has economic and administrative autonomy but functionally depends on the Ministry of Health and is supervised by the Vice Minister of Health.62

31.  The advice given by the National Health Institute started from the beginning of the pandemic and was published on its official web portal.63 The Institute constantly recommended hand washing and social distancing as preventive measures. It promoted hand washing as more efficient than the use of alcohol in preventing Covid-19 transmission.64 This organisation also recommended the use of KN95 masks as more effective than other types of masks.65 It also published recommendations for the preparation of meals in common pots during the pandemic, including recommendations on constant hand washing.66 In addition, it advised cleaning every cellphone to avoid the transmission of Covid-19.67 With regards to social gatherings, it recommended maintaining social distancing during holidays and festivities.68

32.  In terms of nutritional prevention advice, the Institute recommended that the elderly consume vitamin A to prevent respiratory problems.69 In addition, it suggested that the general population consume fruits and vegetables, proteins, and carbohydrates, to ensure a healthy diet and prevent respiratory infections.70 With regards to the protection of newborn babies, it highlighted the importance of breastfeeding during the pandemic, and recommended bio-security measures for mothers if they tested positive for Covid-19.71

III.  Institutions and Oversight

A.  The role of legislatures in supervising the executive

33.  As mentioned in Part I above, the Peruvian Constitution establishes a model of government of weakened presidentialism, in which, although the President concentrates many prerogatives and powers, the Parliament has some control mechanisms over the executive branch. Among these control mechanisms is the constitutional impeachment and eventual removal of the President from office, as provided for in Article 117 of the Constitution.72 But there is another mechanism that was used by the National Parliament in 2020 to remove former President Martin Vizcarra from office: the presidential vacancy due to ‘permanent moral incapacity’, a cause contemplated by Article 113(2) of the Constitution.73

34.  The Constitution provides various checks and balances in the relationship between the executive and the legislative branches. The most powerful one in the hands of the President is the prerogative to dissolve the Parliament if it censures or denies confidence to two ministerial cabinets—as established in Article 134 of the Constitution.74 This occurs when an impasse arises between both powers of the State that cannot be solved through other means of political dialogue. This extreme measure is surrounded by certain constitutional guarantees that seek to avoid authoritarian adventures.

35.  For the 26 years, since the 1993 Constitution came into effect, the presidential prerogative of constitutional dissolution of the Parliament had not been used. However, in September 2019, it was exercised by former President Martin Vizcarra due to a political impasse with Congress at that time.75

36.  But the new Congress that emerged from the elections in January 2020, removed former President Vizcarra from office in November 2020 for alleged acts of corruption he committed while he was Governor of the Moquegua region in the south of the country. For this, more than the qualified majority of the legislative power required—according to Article 89-A of the 2020 Regulations of Congress76—used the mechanism of presidential vacancy on the grounds of ‘permanent moral incapacity’ established in Article 113(2) of the Constitution. The motion of vacancy was proposed by four of the political parties of the Parliament. Later on, it was approved with the unanimous support of the political party Unión por el Perú, while other political parties decide to vote freely without a consensus. However, the majority of parliamentarians in each parliamentary group voted in favour of vacancy. The only parliamentary group who voted unanimously against the vacancy was the Partido Morado.77

37.  The mechanism of presidential vacancy is foreseen in the Constitution as a means to avoid a power vacuum in case of an absence of the President due to objectively verifiable circumstances: death, resignation, escape from the country, or permanent physical incapacity.78 However, there is the indefinite clause of ‘permanent moral incapacity’ which was interpreted by the Parliament at its discretion as a means of political control or an impeachment procedure, which resulted in the vacancy (removal) of the former President in a very brief parliamentary debate of only ten days. There is an established Parliamentary procedure which requires the approval of the motion of vacancy by two-thirds of the legal number of parliamentarians (87 of them).79 The Constitutional Court (Tribunal Constitucional) has not yet established the criteria to interpret the cause of vacancy due to moral incapacity. This is the main reason why this mechanism of presidential vacancy has become one of the most convoluted debates of constitutional law in Peru.

38.  With regards to the sub-national and national governments, they have been coordinating joint actions for vaccination in their respective geographic areas. For its part, in January 2021, the Comptroller General of the Republic, an autonomous constitutional body in charge of overseeing the proper use of State resources, deployed officials at 40 points of the country to verify the correct distribution and application of the vaccine against Covid-19 not only by the National Government, but also by the regional and municipal governments, with the express purpose of avoiding the emergence of a ‘black market’ of vaccines according to the Comptroller General himself (see Part IV.A.8 below).80

39.  Despite this audit, in March 2021, several authorities and officials or former officials of the Regional Government of Loreto in the Peruvian Amazon, were irregularly immunized outside the schedule established by the national Government.81 Several public institutions, including the Comptroller’s Office and the Public Prosecutor’s Office, initiated administrative and criminal investigations against these public officials (see Part IV.B below).

B.  The functioning of the legislature where its ordinary business is disrupted

40.  The National Parliament has continued to operate without any limitation, although via virtual sessions or meetings, since face-to-face activities in closed spaces represent a serious risk of contagion. A report of the legislative branch of February 2021 reported 648 workers and 26 members of Parliament were infected—unfortunately, one of them died from Covid-19.82

41.  No political or press complaints have been raised with regards to the move to virtual parliamentary proceedings, given that the state of emergency decreed by the Government since the beginning of the pandemic does not prevent the regular functioning of the Parliament. Its operations have not been suspended; on the contrary, the legislative power has been politically active, passing laws, continuing with parliamentary committee meetings, and even vacating the President, as explained above. Virtual legislative activities have continued to be broadcasted on the official television channel of the Parliament without interruption.

C.  Role of and access to courts

42.  During the pandemic, the judicial branch and other judicial institutions have made efforts to virtualize the provision of their justice services, but with serious technological and budgetary limitations.

43.  In the case of the judicial branch, during the first months of the pandemic in 2020, it remained closed and only provided emergency services in criminal justice matters. Subsequently, it began to implement some ‘virtual attention channels’: an online desk of criminal proceedings, filing of appeals before chambers of the Supreme Court, an administrative desk, electronic consultation of court records, electronic judicial notifications, among others.83

44.  However, the provision of justice services has not been fully virtualized, but requires that judicial servants attend the offices of the judicial branch in person a few days a week. The judicial branch is one of the areas of the Peruvian State with an underdeveloped technological infrastructure and, despite the virtualization efforts since the pandemic, these areas are still underdeveloped.84

45.  With regards to the Public Prosecutor’s Office (the body of prosecutors in Peru), its organization mirrors that of the judicial branch, that is, it has a pyramidal structure. This autonomous constitutional body has also made efforts to virtualize its services since the beginning of the pandemic, but to a lesser extent. Although in principle it has implemented a service of electronic consultation of tax investigations and electronic reception desk, the latter are not available on its website.85

46.  On the other hand, the Constitutional Court of Peru has managed, with relative success, the implementation of electronic consultation of constitutional files in process and the entry of appeals and documents through a virtual desk.86 It even has a link in Quechua, the most widely spoken native language in Peru.87 In addition, during the pandemic, public hearings have been held through digital platforms.

47.  In the case of military justice, there has been no virtual adaptation whatsoever due to the pandemic and there are even difficulties in accessing the information available on its website, which should be publicly accessible.88 With regard to arbitration, it is basically a private mechanism for dispute resolution composed of lawyers, companies, and some arbitration centres. During the pandemic, it has not been difficult for them to adapt to virtual modality given the simplicity of their procedures and the technological resources they already had.

48.  Finally, indigenous justice systems are recognized by Article 149 of the Constitution, which is important given the multicultural and diverse nature of Peru. These indigenous normative systems are especially prevalent in the Amazon and Andean regions. During the pandemic, indigenous justice has continued to function in person where it has been possible. It is complicated to virtualize a justice system that is usually exercised in rural areas with poor internet connectivity and a shortage of equipment such as computers or smartphones.

D.  Elections

49.  The pandemic has not affected the two elections that have taken place in Peru during 2020 and 2021. In January 2020, the election of a new Parliament took place to complete the mandate of the Parliament dissolved by former President Vizcarra in September 2019. Subsequently, in April 2021, general elections were held to elect the Parliament and the President of the Republic for the period 2021–2026 and in June of the same year, a run-off election was held between the two presidential candidates who obtained the highest vote.

50.  All of these elections were carried out relatively normally, with no reports of fraud or serious irregularities and with international electoral observation missions such as that of the Organization of American States (OAS). This mission published a preliminary report in which, although it reported some difficulties resulting from the pandemic—such as the fact that in four countries Peruvians abroad were unable to vote or that some polling stations were late in starting to function on voting day—in general it recorded a valid electoral process and one in which special measures were adopted to avoid the spread of Covid-19.89

51.  Along this line, the OAS Observation Mission recognized ‘the efforts of the National Office of Electoral Processes (ONPE) to generate a safe environment for voters. It especially highlights the joint work with the country's health authorities and the anticipation with which the development of prevention measures was initiated’.90

52.  More specifically, since the transitional Government of President Francisco Sagasti began its administration in November 2020, one of its priorities was to hold the general elections in spite of the pandemic.91 To this end, it allocated additional resources to the ONPE.

53.  However, the general elections held on 11 April 2021 had a high level of absenteeism—almost 30% of the total number of voters were absent,92 compared to previous elections, and 17% of the votes were invalid or left blank,93 which made this election one of the lowest in terms of citizen legitimacy. Therefore, the presidential candidates that went to the run-off election and the elected congressmen also suffer from low legitimacy.94

54.  The other key autonomous constitutional body in the electoral processes is the National Jury of Elections (JNE).95 This body has also functioned with independence, although with some limitations inherent to the pandemic. During the second round of elections, the President of the JNE was the victim of questioning by some political and press sectors, but received support from another sector of the press, civil society, and the authorities.96

E.  Scientific advice

55.  Although the scientific community in Peru has been very concerned and focused on the follow-up and treatment of Covid-19 from the beginning, it has not had a great impact or influence on the policies adopted by the Government. In April 2020, a temporary Working Group was formed under the Ministry of Health to advise on health technology innovation for the care and management of Covid-19.97 However, it did not have the expected influence on the Government, given that the reports were managed internally and did not have a binding nature.

56.  On the other hand, the medical community, represented by the Medical Association of Peru and the Peruvian Medical Federation, has had a greater public role and greater influence on the measures adopted by the Government, such as recommending mandatory confinement and curfews for the entire population for certain periods of time, except for essential services. These mandatory confinements were ordered mainly during 2020 by former President Vizcarra.

57.  During 2021, the transitional Government of President Sagasti changed its strategy and opted to classify the cities and regions of the country according to the level of risk of contagion as extreme, very high, high, and so on, and accordingly, to establish focused measures of mandatory confinement, prohibition of traffic of private vehicles, and curfew on certain days and hours.

F.  Freedom of the press and freedom of information

58.  Freedom of expression, freedom of the press, and access to public information have not been limited in Peru in any way during the pandemic. Freedom of expression is also one of the rights that cannot be limited during states of emergency.

59.  For this reason, information and debate on Covid-19 countermeasures has been intense and consistent in Peru. This has served, for example, to criticize some measures adopted by the Government, such as at the beginning of the pandemic the ‘peak and gender’ (pico y género) mechanism, under which men and women were allowed to transit according to the day of the week.98

G.  Ombuds and oversight bodies

60.  In the balance of powers and supervision of the measures adopted to confront Covid-19, there are two autonomous constitutional bodies that have exercised a control and oversight function over the actions of the Government during the pandemic. The Office of the Comptroller General of the Republic is the autonomous body that oversees the proper use of public resources and ensures that public officials do not engage in acts of corruption, otherwise they are reported to the Prosecutor’s Office for corruption offenses. During the pandemic, several mechanisms were implemented for ex ante and ex post control of the execution of special resources allocated for vouchers to help vulnerable population, acquisition of medical equipment and medicines, expansion of hospital facilities and application of Covid-19 vaccines according to the schedule of priorities established by the Government, as mentioned in Part III.A above.99

61.  Another autonomous body that has been playing an oversight role is the Ombudsman’s Office, which has issued several reports on the measures and policies adopted by the Government regarding Covid-19, making recommendations to improve the respect and exercise of the fundamental rights of citizens, especially of social sectors in vulnerable conditions such as the LGTBQ+ population, children, indigenous peoples, and the prison population, among others.100

62.  Finally, the Public Prosecutor’s Office (the autonomous body of prosecutors in Peru) has also played an oversight role, investigating the commission of possible crimes related to the misuse of public resources intended to fight Covid-19 or serious irregularities in the application of vaccines, such as the case known as ‘vacunagate’ (vaccinegate). This broke out in February 2021 and involved former President Vizcarra and his family members, former ministers, high officials of the Ministry of Health and Foreign Affairs, and other individuals, who were vaccinated in secret and used their positions of power or privilege to be vaccinated without respecting the schedule established by the Government. This scandal is being criminally investigated by the Public Prosecutor’s Office.101

IV.  Public Health Measures, Enforcement and Compliance

A.  Public health measures

63.  Peru faced the Covid-19 global pandemic with a precarious public health system and an unstable political climate. Indeed, having former President Martin Vizcarra impeached in November 2020 and former Congress President Merino assuming power for less than a week, then being displaced after the biggest citizens’ demonstration in Peruvian history against Martin Vizcarra’s impeachment, considered unconstitutional by the population and some constitutional lawyers, President Sagasti assumed the power after being elected President of the Congress. Evidently, this political scenario has had a noticeable impact on Peru’s pandemic management.

64.  In that context, the country started the pandemic with only 100 intensive care unit (ICU) beds within the territory, having to account for a population of more than 33 million people.102 As of May 2021, more than a year after the pandemic began, Peru has more than 2,000 ICU beds.103 For the first four months of the pandemic, Peru’s former President, Martin Vizcarra adopted a very strict ‘lockdown’ strategy, in which only essential workers were allowed to transit freely. Additionally, Peru closed its borders for the first six months of the pandemic, allowing entrance only to citizens returning to the country, and only opening its borders as of October 2020 to a few countries.

65.  During the first months of the pandemic, the Government adopted strategies applied at a national scale, not taking into consideration the different situations of the pandemic that faced each city or region. However, in the last months of 2020, the Government started implementing more focused strategies depending on the situation of each region or city. In that sense, the strategies were elaborated and applied according to each region’s circumstances, which were classified as moderate, high, very high, and extreme risk. Moreover, the Government established the use of facemasks as mandatory by law.104

66.  Additionally, it is important to mention that the private sector and organized civil society played a key role in the mitigation of the pandemic’s consequences. In fact, they organized the transportation of the first thousands of vaccine doses from China to Peru. Although Peru is considered the country with the highest Covid-19 mortality rate in the world,105 the nation has started to execute its vaccination program, which has significantly decreased the mortality rate and aims to reach herd immunity by the end of the year 2021.

1.  Individual mobility restrictions on citizens (stay-at-home, curfews, etc)

67.  On 15 March 2020, President Vizcarra declared a state of emergency due to the Covid-19 pandemic and ordered the entire country to stay at home (social isolation) for 15 days,106 a measure that was renewed several times.107 However, there were some exceptions to the complete social isolation measures. People and institutions were allowed to transit freely in the following cases: those shopping for items to satisfy essential needs (such as food or drugs), healthcare facilities, essential workers (those working in essential services), people returning to their regular homes from abroad or mandatory isolation, elderly or patient assistance, financial entities, storage personnel, fuel, hotels for quarantines, the press, essential public servants, essential activities stipulated by the Ministry of Economy and Finance. However, social isolation for people returning to the country was mandatory.108

68.  Mandatory curfew was declared on 18 March 2020 from 8pm until 5am the following day.109 This measure lasted until 30 March 2020, when the Government declared a new curfew from 6pm until 5am the following day (curfew was mandatory starting at 4pm in Tumbes, Piura, Lambayeque, La Libertad, and Loreto),110 as well as forbade the use of personal vehicles. Nevertheless, the aforementioned people were exempt from this measure.

69.  Additionally, for a brief period lasting from 2 April to 10 April 2020, men could transit only on Mondays, Wednesdays, and Fridays; and women, on Tuesdays, Thursdays, and Saturdays. On Sundays, however, all traffic was prohibited (with the aforementioned exceptions).111 This measure stipulated that any kind of gender-based discrimination was forbidden; nonetheless, it is important to mention that there were many claims alleging that this measure caused discrimination against the transgender community.

70.  Mandatory social isolation (‘stay-at-home’) was lifted on 30 June 2020.112 However, children, teenagers under 14 years old, as well as vulnerable groups (adults older than 65 years and persons with comorbidities) had to remain in social isolation.113 Only children under 14 were allowed to go out for a daily walk for no more than an hour (later reduced to 30 minutes) and were not allowed to walk further than 500 meters from their houses. Still, cities such as Arequipa, Ica, Junin, Huanuco, San Martin, Madre de Dios, and Ancash still remained under mandatory social isolation. In fact, many provinces and cities remained under mandatory social isolation until September 2020.

71.  Since the number of Covid-19 cases decreased in November 2020, the Government adjusted the curfew hours and changed these to 11pm to 4am.114 However, as the Covid-19 cases increased in December 2020 and January 2021, President Sagasti ordered a national ‘lockdown’ from 31 January 2021 until 14 February 2021, that was extended until the end of month.115

72.  Nevertheless, another national ‘lockdown’ was imposed on 13 March 2021 until 28 March 2021, and on 29 March 2021, the President announced the prohibition of vehicle utilization on Sundays with the exception of national election day, which was 11 April 2021.116

2.  Restrictions on international and internal travel

73.  On 10 March 2020, the President ordered the closure of national borders starting on 16 March 2020. This measure applied to commercial and general flights.117 Four days later, on 14 March 2020, borders were also closed to cruise ships. In that same way, internal travel was restricted from 15 March 2020 until 15 July 2020, when passengers were allowed to fly wearing a face mask and face shield.118

74.  In line with this, the Ministry of Health approved the ‘[s]uspicious cases from the Travelers Technical Guide’, which aimed to prevent and control the spread of the Covid-19 virus throughout the country.119 This guide ordered the transport companies to provide face masks to all passengers. Additionally, it stipulated guidelines for passengers to follow when arriving in the country. These established that when passengers arrived, their body temperature would be measured: if they had a body temperature under 38ºC, passengers would quarantine in hotels assigned by the Government; if they had a temperature higher than 38ºC, they would undergo a rapid test. In both cases, passengers would remain in quarantine for 15 days or, if they tested positive for Covid-19, be transferred to a healthcare facility. This technical guide was in force until 18 June 2020.

75.  As of 5 October 2020, the national aerial borders reopened to Guayaquil, La Paz, Quito, Bogota, Santa Cruz, Cali, Medellin, Panama, Asuncion, Montevideo, and Santiago.120 Starting on 1 December 2020, borders opened to flights departing to and from the United States, Mexico, Brazil, Argentina, the Dominican Republic, El Salvador, Jamaica, and Canada.

76.  Starting on 15 December 2020, air borders were reopened with Spain, the Netherlands, France, and the United Kingdom. Later on, from 13 March until 31 March 2021, Peru closed its air borders with the United Kingdom, South Africa, and Brazil.121 Finally, in order to enter the country, travellers have to present a negative PCR test, and sign and present an affidavit declaring that they do not have Covid-19 symptoms.

3.  Limitations on public and private gatherings and events

77.  On 12 March 2020, the Peruvian Government suspended all the ceremonies, reunions, congresses, seminars, and every other activity that involved people gathering,122 limiting citizens’ constitutional right to peaceful assembly. Three days after, once the state of emergency was declared, any social activity that involved public or private gatherings was forbidden. On 30 June 2020, the Vigilance, Prevention, and Health Control Guideline was approved by the Ministry of Health in order to set the framework for future regulations regarding public gatherings.123

78.  As of 22 October 2020, citizens were allowed to practice physical activity alone or with a partner in parks, clubs, and other authorized establishments.124 As of November 2020, religious entities were allowed to carry on ceremonies with no more than a third of the establishment’s capacity.125

79.  Close to the Christmas holidays, on 17 December 2020, the Government launched a campaign to prevent private gatherings during those special dates,126 through its social media accounts on Facebook, WhatsApp, Instagram, and Twitter. This campaign aimed to create awareness about having family and friends gather during the holidays and the repercussions this could have with regards to a new outbreak of the disease.

80.  On 11 April 2021, national elections were held, but public measures were taken in order to avoid the increase of Covid-19 cases in the country.127

4.  Closure of premises and facilities (eg schools, shops, services, parks, churches, sports facilities)

81.  On 15 March 2020, Supreme Decree 044-2020 suspended public access to most establishments, with the exception of the retail commercial establishments of food, beverages, and essential goods, pharmaceutical establishments, medical, optical, and orthopaedic products, hygiene products, and gas stations and establishments for the sale of fuel.

82.  Educational facilities were also temporarily closed from 15 March 2020, when quarantine was established, without any distinction made depending on the levels of education.128 However, the regional directorates of education were exceptionally empowered to start the educational service in rural areas with limited access to communication and connectivity media and where they registered zero level of contagion of Covid-19.129 On 25 December 2021, the Government passed a Minsterial Resolution that established the progressive return to class as of 1 March 2022 (prioritizing the return of students of basic education).130 As of 23 April 2022, the Government approved the elimination of the one-metre distance restriction in these spaces allowing the increase of capacity to 100% in school classrooms,131 which means that there are currently no more school closures at time of writing.

83.  On 23 May 2020,132 and within the scope of the new measures provided, Article 16 of Supreme Decree 94-2020-PCM established that public sector entities at any level of government may restart activities at up to 40% of their capacity, adopting the relevant measures. This also included information for the attention of citizens, safeguarding health restrictions and social distancing, prioritizing remote work as much as possible, implementing or enabling the virtualization of procedures, services, etc, as well as establishing, if applicable, variation or expansion of the business hours of the entity.

84.  Additionally, in banks and other financial entities a capacity of no more than 50% was allowed. Prior disinfection and the mandatory use of masks was required for entry by the public, as well as maintaining physical distancing.133

85.  As of 2 November 2020,134 religious entities were authorized to open their temples and places of worship to receive their members, the faithful, and the general public, for the individual profession of their faith, at a capacity no greater than one-third of their total capacity. Exceptionally, they could celebrate sacraments and related special ceremonies according to their worship if they adopted and complied with the sanitary regulations issued by the National Health Authority and the applicable measures of the state of national emergency. Moreover, as of 15 November 2020,135 religious entities were allowed to celebrate religious rites and practices of a collective nature, at a capacity no greater than one-third of their total capacity of the temples or places of worship, according to the protocols duly agreed upon by the National Health Authority and in accordance with the measures of the national state of emergency.

5.  Physical distancing

86.  On 23 March 2020, the Government stipulated that in all activities involving some kind of ‘gathering’, such as shopping in the supermarket, people had to distance themselves from each other, leaving a space of no less than one metre between individuals.136

87.  It is relevant to mention that many districts in Lima adopted additional measures, like holding open-air fairs instead of gathering people into supermarkets where ventilation was not as optimal as outdoors. In fact, the Municipality of Miraflores stipulated that the social distancing in grocery stores or fairs had to be at least one and a half metres.137 At time of writing, this office has implemented a procedure through a municipal decree where restaurants are allowed to expand their table area into alleys (or other public spaces) in order to compensate for the smaller capacity they now have due to Government measures.138

6.  Use of face coverings or personal protective equipment (PPE)

88.  After two weeks of strict ‘lockdown’, on 3 April 2020, the President declared the use of face masks mandatory for all the citizens outside of their dwellings.139 As of May 2021, it is still mandatory for everyone to wear a mask. In fact, since April 2021,140 it is mandatory for every citizen to wear two face masks and it is also mandatory to wear a face shield when using public transportation since July 2020.141 The Government, in collaboration with regional municipalities, provided face shields to any potential public transport user;142 this measure did not reach its goal completely and, for this reason, citizens had to provide their own face shields in public transport.143

89.  On the other hand, the Ministry of Health, in collaboration with other entities, delivered, during the first week of the pandemic, personal protective equipment (PPE) to many hospitals throughout the country. PPE gear consisted of an isolation gown, N95 respirators, goggles, surgical and nitrile gloves, and a surgical facemask. These kits were delivered in Lima and other provinces.144

90.  It is important to mention that, because this was a global pandemic, Peru’s shortage of protective equipment, such as face masks and medical respirators, including N-95, FFP2, FFP3, and KN95 surgical face masks, was imminent. For this reason, the Government prohibited the commercialization of the aforementioned respirators by 7 April 2020,145 allowing their allocation only to healthcare establishments.

91.  By the beginning of 2021, the Municipality of Lima received quite a few donations of PPE from different municipalities of the People’s Republic of China.146

7.  Isolation of infected individuals and quarantine of individuals suspected of infection

92.  The Minister of Tourism and External Relations released an emergency decree that allowed the Government to finance the quarantine of Peruvian citizens who had returned to the country during the sanitary crisis in different hotels, providing them with food.147 In that scenario, the central Government transferred, in March 2020, PEN 3,500,000 (Peruvian soles) (approximately USD $1 million) to the Ministry of Tourism and External Relations for management of this national strategy; this budget was later modified and increased.148 Nevertheless, the Government recognized that the hotels provided them with low-priced tariffs.149

93.  On 2 April 2020, the Ministry of Health approved a sanitary directive in order to implement the Temporary Isolation Centre for Confirmed and Suspected Symptomatic Patients.150 Consecutively, six days later, the Ministry released another directive, where all the procedures to follow up on the patients were specified. Additionally, that directive allowed the creation of the task group Unidad de articulación de los registros y soluciones tecnológicas Covid-19, whose objective was to articulate all the procedures in order to implement an integral Covid-19 patients’ treatment program.151

94.  Jointly, on 9 April 2020, the Temporary Isolation and Follow Up Centres (CATS) were implemented as a State measure to provide facilities for mild cases where isolation, treatment, and follow up was guaranteed, specifically for patients who had comorbidities and whose disease could progress into a severe case.152

8.  Testing, treatment, and vaccination

95.  On 15 March 2020, the Government, by an emergency decree, authorized the Ministry of Health to contract with authorized public and private laboratories for the collection of samples from patients, in their dwellings, that presented Covid-19 symptoms. These laboratories had to send the results to the National Health Institute no more than an hour after the results were determined. It is important to mention that the samples were taken, at the beginning of the pandemic, through a rapid test.153 Eventually, private laboratories were allowed to test people in their own establishments.

96.  The temporary Operations Command was created with the aim of implementing, executing, controlling, and evaluating the Covid-19 patients’ treatment process on a national scale; in fact, it was the highest national authority in this field. This task group was created on 31 March 2020 by the Ministry of Health154 and was integrated by an EsSalud representative, a Navy healthcare official, an Army healthcare official, an Air Force healthcare official, a Police healthcare official, and a representative of the Private Clinics Association of Peru.

97.  The Ministry of Health elaborated a unique technical document named ‘Prevention, diagnosis, and treatment of people affected by Covid-19 in Peru’,155 which was first published on 14 April 2020 and later modified, for the last time, on 8 May 2020.156 This document specified the treatments for each Covid-19 case: (i) mild cases without comorbidities, (ii) mild cases with comorbidities, and (iii) moderate and severe cases. A Covid-19 test was prescribed to all of the aforementioned groups. In relation to the first and second group, the drug prescription was Hydroxychloroquine (400mg every 12 hours on the first day, and the following six days 200mg every 12 hours) and Ivermectin (200mg (=1 droplet) per kg, maximum dose of 50 droplets). For the third group, Hydroxychloroquine, Azithromycin, Chloroquine Phosphate, and Ivermectin were prescribed.157 It is important to mention that each doctor would indicate the patient's treatment for each particular case and had to have the informed consent of the patient, when possible. The Government considered in this technical guide that it was only necessary to go to a healthcare establishment when the patient had breathing difficulty, altered mental status, fever, chest pain, and blue lips, hands, and feet.158

98.  Finally, it is important to note that although this technical guide was last modified on 8 May 2020 and other treatments have been adopted, it is still available on the Government’s official website as the official Covid-19 treatment in the country.159

99.  On 11 April 2020, the Government created the temporary commission in charge of determining the actions required to obtain and distribute the Covid-19 vaccine in Peru.160

9.  Contact tracing procedures

100.  On 10 June 2020, the technical regulation ‘Guidelines for the use of rapid tests for the detection of antibodies against Covid-19 at random on port workers at the national level’ was approved.161 Its purpose was to achieve an adequate evaluation of the situation of economic activities, and therefore plan the strategies required to guarantee the continuity of port services and the port’s logistics chain.

101.  It was provided that the tests be carried out in coordination with the Administrator of the Registry of Port Workers or the most representative employer or union of the corresponding jurisdiction. Special attention and priority were given to the Callao Port Terminal, which represents one of the regions with the highest level of contagion.162

102.  On 31 July 2020,163 the Guidelines for the implementation of the alert strategy for the identification of suspected cases of Covid-19 in indigenous or native peoples and the Afro-Peruvian people, and for follow-up and monitoring during the medical treatment of cases, were approved.

103.  The Ministry of Culture is in charge of implementing alert strategies, systematizing information, identifying in the timeliest manner possible symptomatic cases of Covid-19 in indigenous or native and Afro-Peruvian populations, as well as reporting emergency situations. It coordinates with the decentralized directorates of culture and the national, regional, and local organizations representative of the native indigenous peoples and the Afro-Peruvian people when managing the early alerts of Covid-19. The representative organizations of the towns collaborate by providing information on suspected cases as appropriate.

104.  Moreover, the Ministry of Culture coordinates with the Ministry of Health in order to provide technical assistance and accompaniment to the regional health directorates and health networks, and to coordinate with the institutions that provide health services to achieve operational application and fulfilment of its function.

105.  Finally, on 3 November 2020, the ‘Health Directive for the Epidemiological Surveillance of Coronavirus Disease (Covid-19) in Peru’ was approved.164 The surveillance includes identification, recording, and investigation of cases, outbreak investigation, census, and monitoring of cases.

10.  Measures in long-term care facilities or homes for elderly, restrictions on visitors etc

106.  On 12 March 2020, the Ministry of Women and Vulnerable Peoples issued a document, together with the General Direction of Family, called ‘Guidelines and recommendations for preventing and treating possible Covid-19 cases in the care homes’.165 This document established the basic guidelines these centres had to follow, for instance: the centre’s staff training regarding Covid-19 governmental measures, reporting suspected cases to the Ministry of Health, optimal sanitation according to Government guidelines, managing the vaccination process (when possible), among others. Additionally, these Guidelines imposed restrictions on visitors as well as preventing the elderly from leaving of the centre. The Peruvian Ombudsman issued a document where it recommended the Ministry of Women and Vulnerable People adopt, in addition to those measures taken (the aforementioned Guidelines), the recommendations from the World Health Organization and the Economic Commission for Latin America and the Caribbean on the elderly and Covid-19.166

B.  Enforcement and Compliance

1.  Enforcement

107.  On 14 April 2020, Legislative Decree 1458 provided the legal framework to sanction non-compliance with the provisions of the sanitary emergency at the national level.167 The provisions contained in this legislative decree are applicable to any person who fails to comply with the provisions of the regulations issued within the framework of the national health emergency and the declaration of a state of national emergency. The sanctioning and supervisory powers are held by the police.

108.  According to this decree, carrying out economic activities not considered to provide essential benefits constitutes an infraction; as well as travelling on public roads to carry out activities that are not authorised; circulating on public roads without having the relevant personal work pass, if applicable; and travelling with a vehicle for private use without authorization issued by the Ministry of Defense or the Ministry of the Interior. Also, not respecting the mandatory social immobilization constitutes an infraction; as well as organizing social, recreational, cultural, religious activities of mass or non-mass gatherings or presence on public roads; driving on public roads without wearing a mandatory mask; leaving the house with more than one person per family for the acquisition of food or pharmaceutical products; not respecting the mandatory minimum distance of one metre between individuals, forming gatherings in commercial establishments whose opening is allowed; and not complying or refusing to comply with the requirement to provide identification to the members of the national police or the armed forces. The fines applied will be from 2% of the Mandatory Tax Unit to 10% of the ITU, depending on the seriousness of the infraction.

109.  As Peru approved the phases for economic reactivation, which permitted activities and social mobility to gradually resume, it became necessary to regulate the sanitary protocols for the transportation services.

110.  On 7 May 2020,168 the Transport and Communications Ministry issued the sector’s Health Protocol for Covid-19 prevention in public transport. Through Supreme Decree 016-2020-MTC,169 the National Regulation of Special Public Transportation of Passengers in Motorized or Non-Motorized Vehicles established the competence of the district municipalities to classify, qualify, and sanction infractions for breach of the respective protocol or the sectoral guidelines for the prevention of Covid-19.

111.  Furthermore, it was established that it is the obligation of the authorized carrier to comply with the relevant protocol or sector guidelines for the prevention of Covid-19 in the provision of ground transportation service.170

2.  Compliance

112.  Experts point out that there is an inherent disobedience and idiosyncrasy to Peruvian behaviour. Thus, various cultural factors—such as the ‘low perception of risk’ and a deep-rooted culture of living on the street—as well as political factors—distrust and low legitimacy of the Government due to corruption issues—have generated generalized disobedience. As described in Supreme Decree 053-2020-PCM,171 the non-compliance rate with the laws was very high all over the country, especially when it came to those that limited the exercise of the right to freedom of movement. As this constituted a risk to public health due to the characteristics of Covid-19, non-compliance meant prolonged and, in some cases, enforced laws.

113.  Nevertheless, non-compliance was also the result of systemic, structural factors in the country: previous conditions of poverty, low investment in public health, and cultural factors that aggravated the situation and made measures either inapplicable or ineffective.

114.  Starting with the public health system: Peru dedicates only 2.3% of its annual GDP to its health system, according to data from the World Bank and OXFAM, collected in 2016.172 Today, with a huge deficit, some hospitals declared the impossibility of attending to all patients.

115.  On the other hand, socioeconomic conditions explained the sources of Covid-19 outbreaks: markets. Only 49% of Peruvian households have a refrigerator, which means the necessity of buying fresh food every day. In addition, 30% of Peruvian households suffer from overcrowding. 173 Moreover, poverty also generated a ‘reverse exodus’ during April 2020, when people living in the capital tried to return to rural areas, as unemployment grew, and families needed economic support from their members.174

116.  Thus, the pandemic revealed the structural weaknesses of the State, especially in rural areas, where aid does not arrive and the infrastructure is very poor: Amazonian communities, for example, tried to isolate themselves completely to avoid contagion, but finally had to mobilize to access the aid.175

117.  Among other weaknesses is the social aid. This was aimed to constitute social aid offered by the Peruvian Government and in the first days led to the formation of large queues and gatherings around banks and State institutions, thus creating sources of Covid-19 contagion that facilitated the spread of the virus. On the other hand, the digital options created barely helped, since only 38% of adults in Peru have a bank account, which prevented the prompt receipt of the subsidy and forced the most vulnerable population to displace to go and receive the subsidy.176

118.  As political scientist Iván Lanegra states: ‘the low banking level is linked to the informality of the economy. To this must be added that the private financial system hardly reaches the periphery of the main cities or rural areas, or does so in a limited way’, which forces people to use other means.177

119.  But that is not all: about 70% of Peruvians work in the informal employment sector, and therefore they live on a daily income. Thus, a third of the commerce in the country is itinerant—40% are self-employed. The financial aid also provided a temporary mitigation, but the need to work and support oneself made compliance with mobility regulations unfeasible and impossible—alternatives such as ‘online work’ were not a possibility.178

120.  In conclusion, Peru dealt with a great gap between the law and its effectiveness, which brought about serious consequences for the State’s capacity—specifically its healthcare system—to handle the pandemic. The limited compliance with the law in the country is thought to be one of the main reasons for the critical situation in which Peru found itself when facing the pandemic.179

Prof. David Lovatón, College of Law of Pontificia Universidad Católica del Perú, Doctor in law, Magister in constitutional law, Lawyer, and DPLF senior legal adviser

Co-authors:

Ariana Cotrina

Isabella Monsante

Gabriela Ortega

Ana Lucía Campos

Vera Duque

Chiara Jacob

Darleen Vicente

Pontificia Universidad Católica del Perú (PUCP)

Footnotes:

1  World Health Organization, ‘Peru: WHO Coronavirus disease (COVID-19) Dashboard with Vaccination Data’ (accessed 23 May 2022).

3  World Health Organization, ‘Peru: WHO Coronavirus disease (COVID-19) Dashboard with Vaccination Data’ (accessed 23 May 2022).

4  World Health Organization, ‘Peru: WHO Coronavirus disease (COVID-19) Dashboard with Vaccination Data’ (accessed 23 May 2022).

5  ComexPerú (eds), ‘How does the health sector start in 2020? Infrastructure and equipment’ Seminario 1017 (Online, 31 January 2020).

6  Mesa de Concertación para la Lucha contra la Pobreza, ‘National Report on the Impact Of Covid-19 in the Economic, Social and Health Dimensions in Peru (As Of May, 2020)’ (7 July 2020), 25.

7  Ministry of Health, ‘Ministry Of Health: Peru Now Has 306 Medical Oxygen Plants Nationwide’ (24 July 2021).

8  J Horton, ‘Covid: Why has Peru been so badly hit?’ BBC (Online, 1 June 2021); National Institute of Statistics and Informatics, ‘Technical Report: Living Conditions in Peru’ (June 2020), 17.

10  FJ Eguiguren Praeli, ‘The regime of attenuated presidentialism in Peru and its particular impact on relations between the Government and Congress’ Virtual Legal Library of the Instituto de Investigaciones Jurídicas de la UNAM (UNAM’s Legal Research Institute) (accessed 30 November 2021); D García Belaunde, ‘Attenuated presidentialism and its operation (reference to the Peruvian constitutional system)’ Virtual Legal Library of the Instituto de Investigaciones Jurídicas de la UNAM (UNAM’s Legal Research Institute) (accessed 30 November 2021).

11  Political Constitution of Peru 1993, arts 131–134.

21  Law 27783 2001, art 11.

22  Law 27783 2001, art 10.

26  Supreme Decree 044-2020-PCM (15 March 2020).

27  Political Constitution of Peru 1993, arts 2(9), 2(11)–(12), 2(24) ff.

30  United Nations, ‘Peru: Notification under Article 4 (3)’ (20 March 2020); Organization of American States, ‘Peru - Note 7-5-M-045-2020’ (30 March 2020).

31  Organization of Americas States, ‘Pandemic and Human Rights, Resolution 1/2020’ (10 April 2020).

32  Supreme Decree 008-2020-SA (11 March 2020).

34  Supreme Decree 020-2020-SA (3 June 2020); Supreme Decree 027-2020-SA (28 August 2020); Supreme Decree 031-2020-SA (26 November 2020); Supreme Decree 009-2021-SA (8 March 2020).

37  Supreme Decree 044-2020-PCM (15 March 2020).

38  Constitutional Court of Peru, Sentence 00022-2011-PI/TC (8 July 2015).

39  Legislative Decree 1186 (15 August 2015), art 11; Legislative Decree 1095 (1 September 2010), art 27.

43  G Pereyra Colchado, ‘Bryan and Inti, the two young men who came out to protest and who deserve justice’ El Comercio (Online, 16 November 2020).

48  See V García ‘The Constitution and the hierarchical structure of norms in the system’ (Online, 22 May 2022)

49  M Rubio Correa, El Sistema jurídico. Introducción al Derecho (10th edn, Fondo Editorial 2014), 140.

50  Supreme Decree 045-2020-PCM (17 March 2020); Supreme Decree 051-2020-PCM (27 March 2020); Supreme Decree 053-2020-PCM (30 March 2020); Supreme Decree 057-2020-PCM (2 April 2020); Supreme Decree 058-2020-PCM (2 April 2020); Supreme Decree 061-2020-PCM (6 April 2020); Supreme Decree 064-2020-PCM (10 April 2020); Supreme Decree 068-2020-PCM (13 April 2020); Supreme Decree 075-2020-PCM (23 May 2020).

51  Supreme Decree 053-2020-PCM (30 March 2020); Supreme Decree 061-2020-PCM (6 April 2020).

52  Supreme Decree 058-2020-PCM (2 April 2020); Supreme Decree 068-2020-PCM (13 April 2020).

53  Supreme Decree 080-2020 (2 May 2020); Supreme Decree 083-2020-PCM (9 May 2020).

54  Supreme Decree 080-2020 (2 May 2020); Supreme Decree 101-2020-PCM (4 June 2020); Supreme Decree 117-2020-PCM (30 June 2020); Supreme Decree 157-2020-PCM (1 October 2020).

55  See, for example, Emergency Decree 026-2020 (15 March 2020); Emergency Decree 029-2020 (20 March 2020); Emergency Decree 031-2020 (23 March 2020).

56  Emergency Decree 034-2020 (1 April 2020); Emergency Decree 042-2020 (19 April 2020); Emergency Decree 044-2020 (21 April 2020).

57  Law 31011 2020, art 2.

58  Legislative Decree 1455 (6 April 2020); Legislative Decree 1458 (14 April 2020).

59  Ministerial Resolution 039-2020/MINSA (31 January 2020).

63  National Health Institute, ‘Keep your social bubble is the key to stop the transmission of COVID-19’ (22 May 2022).

64  National Health Institute, ‘Hand wash has better results than alcohol’ (22 May 2022).

65  National Health Institute, ‘Which type of mask is better’ (22 May 2022).

67  National Health Institute, ‘It is recommended to clean cellphones to prevent’ (22 May 2022).

68  National Health Institute, ‘Do not let the guard down during the holidays’ (22 May 2022).

69  National Health Institute, ‘Specialists recommend to the elderly the consume of vitamin A’ (22 May 2022).

70  National Health Institute, ‘National Health Institute recommends the consume of healthy food’ (22 May 2022).

72  Political Constitution of Peru 1993, art 117: ‘During his term of office, the President of the Republic may only be charged with: committing high treason; preventing presidential, congressional, regional, or municipal elections; dissolving Congress, except in cases as set forth in article 134 of the Constitution; and preventing the meeting or operation of Congress, the National Election Board, or other bodies of the election system’.

73  Political Constitution of Peru 1993, art 113: ‘The President of the Republic may vacate his office for the following reasons: … 2. His permanent physical or moral incapacity declared by Congress’.

75  Supreme Decree 165-2019-PCM (30 September 2019).

79  Rules of the Congress, art 89-D

82  Covid-19 pandemic: More than 720 infections in Congress’ El Comercio (Online, 23 February 2021).

83  See the Judicial Branch’s website (accessed 2 June 2021).

84  See A Carrasco Gil, ‘A latent transformation and another pending: the Judiciary in the face of COVID-19’ IDEHPUCP (Online, 5 May 2020); A Cardoza Ayllón, ‘Challenges and challenges for the administration of justice in Peru in times of COVID-19’ Enfoque Derecho (Online, 8 May 2020); Asociación Civil por la Igualdad y la Justicia, ‘Access to Justice in Latin America’ (November 2020), 97.

85  See the Public Prosecutor’s Office, ‘Public Prosecutor's Office of the Nation’ (accessed 2 June 2021).

86  See the Constitutional Court of Peru, ‘Constitutional Court of Peru’ (accessed 2 June 2021).

87  See the Constitutional Court of Peru, ‘Constitutional Court of Peru in Quechua’ (accessed 2 June 2021).

88  See Military and Police Jurisdiction’ (accessed 2 June 2021).

89  Organization of American States, ‘Preliminary Report of the Electoral Observation Mission in Peru 2021 (Informe Preliminar MOE)’ (28 April 2021).

90  Organization of American States, ‘Preliminary Report of the Electoral Observation Mission in Peru 2021 (Informe Preliminar MOE)’ (28 April 2021), 4.

94  G Gorriti, ‘Don’t give away the vote’ IDL-Reporteros (Online, 26 April 2021); D Lovatón, ‘General Elections in Peru 2021: The pandemic has won’, Lex-Atlas: Covid-19 (Online, 19 May 2021).

98  Some criticisms can be found at: Peru restricts street access by gender’ El Pais (Online, 3 April 2020); M Molero, ‘Peak and gender’ El Comercio (Online, 14 April 2020); A Bazo Reisman ‘Why did Peru fail with the ‘peak and gender’ to contain Covid-19?’ France24 (Online, 17 April 2020).

99  See N Shack Yalta, ‘Control in the times of COVID-19: towards a transformation of control’ Comptroller General of the Republic (Online, 8 February 2021).

100  See Ombudsman’s Office’ (accessed 2 June 2021).

101  See D Lovatón, ‘Rule of Law in Peru: Besieged by pandemic and corruption’, Justicia en las Américas - Blog para la Fundación para el Debido Proceso (Online, 11 March 2021).

102  More beds, more hope’ El Peruano (Online, 18 September 2020).

103  Minister Ugarte: “We hope that by July we can have 3,000 ICU beds”’ El Comercio (Online, 6 May 2021).

104  Supreme Decree 094-2020-PCM (23 March 2020).

105  Peru has the highest mortality rate in the world due to Covid’ El Pais (Online, 1 June 2021).

106  Supreme Decree 044-2020-PCM (15 March 2020).

107  Supreme Decree 057-2020-PCM (2 April 2020).

108  Supreme Decree 045-2020-PCM (17 March 2020).

109  Supreme Decree 046-2020-PCM (18 March 2020).

110  Supreme Decree 053-2020-PCM (30 March 2020).

111  Supreme Decree 057-2020-PCM (2 April 2020).

112  Supreme Decree 083-2020-PCM (9 May 2020).

113  Supreme Decree 116-2020-PCM (26 June 2020).

114  Supreme Decree 180-2020-PCM (14 November 2020).

115  Supreme Decree 023-2021-PCM (12 February 2021); Supreme Decree 036-2021-PCM (26 February 2021).

116  Supreme Decree 046-2021-PCM (12 March 2021).

117  Supreme Decree 004-2020-MTC (1 February 2020).

119  Supreme Decree 009-2020- MTC (14 March 2020).

120  Ministerial Resolution 0642-2020-MTC/01 (30 September 2020).

121  Ministerial Resolution 923-2020-MTC/01 (13 December 2020).

124  Supreme Decree 170-2020-PCM (22 October 2020).

125  Supreme Decree 170-2020-PCM (22 October 2020).

130  Ministerial Resolution 532-2021-MINEDU (23 December 2021).

131  Supreme Decree 41-2022-PCM (23 April 2022).

132  Supreme Decree 94-2020-PCM (23 May 2020).

133  Supreme Decree 94-2020-PCM (23 May 2020).

134  Supreme Decree 178-2020-PCM (4 November 2020).

135  Supreme Decree 178-2020-PCM (4 November 2020).

136  Supreme Decree 094-2020-PCM (23 March 2020).

137  Municipality Decree 007-2020-A/MM (30 May 2020).

138  Municipality Decree 015-2020/MM (25 September 2020).

139  Supreme Decree 057-2020-PCM (2 April 2020).

140  Supreme Decree N° 184-2020-PCM (24 April 2021)

141  Supreme Decree 016-2020-PCM (1 February 2020).

142  Emergency Decree 094-2020 (23 May 2020); Ministerial Resolution 0528-2020-MTC (28 August 2020).

145  Health Ministry, ‘Press Release’ (8 April 2020).

146  City Council Agreement No 334 (5 November 2020); City Council Agreement No 335 (5 November 2020).

147  Emergency Decree 031-2020 (23 March 2020).

148  Emergency Decree 043-2020 (20 April 2020).

149  Ministry of Foreign Trade and Tourism, ‘Minister Vásquez: hotels have been complying with safety recommendations for guest care’ (24 March 2020).

151  Ministerial Resolution 183-2020-MINSA (7 April 2020); later on, the sentinel patient’s vigilance was implemented through Supreme Decree 099-2020-EF (7 May 2020).

153  Emergency Decree 026-2020 (15 March 2020).

154  Ministerial Resolution 155-2020-MINSA (31 March 2020).

156  Approved by Ministerial Resolution 193-2020-MINSA (13 April 2020).

157  For further information regarding the doses, see Ministerial Resolution 270-2020 MINSA (8 May 2020), art 7(9).

158  Ministry of Health, ‘Prevention, diagnosis and treatment of persons infected with Covid-19 in Peru’ (14 April 2020), annex 9.

159  Ministry of Health, ‘Learn about the treatment for Covid-19’ (accessed 29 November 2021).

160  Supreme Resolution 079-2020-RE (11 August 2020).

163  Supreme Decree 010-2020-MC (31 July 2020).

164  Ministerial Resolution 905-2020/MINSA (3 November 2020).

165  Approved by Directorial Resolution 0001-2020-MIMP/DGFC (12 March 2020).

166  Special Reports Series No 009-2020-DP (accessed 29 June 2022).

167  Legislative Decree 1458 (14 April 2020).

169  Supreme Decree 016-2020-MTC (18 July 2020).

170  Modification by Supreme Decree 016-2020-MTC (18 July 2020).

171  Supreme Decree 053-2020-PCM (30 March 2020).

174  R Chavez Yacila and J Turkewitz, ‘In Peru, the virus causes thousands of people to return to the countryside’ New York Times (Online, 30 April 2020).