Through attorney Rommel Macedo, Congressman José Luna Gálvez of Podemos Perú requested the Judiciary to order the filing of the investigation against him for criminal organization, under Law 32108 approved by Congress.
The request was made to Judge Jorge Chávez Tamariz, a magistrate who has on two previous occasions used United States legislation and the Palermo Convention to interpret said penal reform, in favor of the Public Prosecutor’s Office.
For Judge Chávez Tamariz, Law 32108 has an ambiguous definition and lacks technical development of the concept of “control of the value chain of an illegal market,” a requirement that does not exist in any other criminal legislation, which requires an interpretation based on the Constitution, conventions and international jurisprudence in order to comply.
For the lawyer there can be no criminal organization within the State apparatus
However, lawyer Rommel Macedo raises a different and novel position, at this stage of the debate generated by Law 32,108 on the elements that must be taken into account to consider the existence of a criminal organization and the crime of organized crime.
Unlike the judge, Macedo believes that there are legal precedents within Peruvian legislation and jurisprudence that allow for the interpretation of concepts and the application of said penal reform, regarding what is meant by “value chain” and “control of the value chain in an illegal market.”
For Luna Gálvez’s lawyer, these concepts have been developed in investigations, judicial proceedings and in documents worked on by the Ministry of the Interior on the “value chain” of illegal mining and the “control of the value chain” in the illegal market for said mining activity.
The pursuit of political power is not an economic goal
In this context, Rommel Macedo explained that the charges that the prosecution attributes to Luna Gálvez of having used the Telesup university to corrupt the CNM councilors to infiltrate the ONPE with the objective of achieving the registration of the political party “Podemos Perú” to have political power, are not typical of the description of the crime indicated by Law 32108.
He added that the aforementioned law of Congress indicates that the criminal organization must have an economic or other material benefit, while, since 2020, the prosecution has indicated that Luna Gálvez and the other defendants would have sought power, that is, a political benefit, which is not a direct economic benefit.
For the lawyer, crimes involving corruption of public officials cannot be considered a criminal organization, since in accordance with the purposes of the State, the public function does not seek a lucrative end, but rather the satisfaction of the needs of the population.
He added that economic benefits could only be discussed if it is established that the criminal organization offers and demands investment projects from the State, where there is a lucrative purpose.
Crimes of corruption of public officials
In the Luna Gálvez case, he stressed, he is accused of bribery and document forgery as a means to achieve the registration of “Podemos Perú” in the registry of political parties.
He argued that the prosecution is talking about alleged economic benefits that the criminal organization would receive from having power, but that would be an expectation, a dream, a possibility, not a concrete fact.
Macedo also pointed out that the public administration is already legally protected against corruption crimes by public officials, so there is no need to speak of organised crime to protect state assets.
For Luna Gálvez’s lawyer, closing the investigation for organized crime will not generate impunity, since all those involved will have to answer for the crimes against public administration attributed to them by the State.
For the prosecution, there is a criminal organization
The prosecution and the money laundering prosecutor’s office refuted the lawyer’s position, insisting that the Luna Gálvez case contained elements of the old and new organized crime law. After hearing the arguments of each party, the judge announced that he would resolve the request in the following days.
At the end of August, the provincial prosecutor Sara del Carmen Francia Cabrera adapted the investigation of Congressman José Luna Gálvez to the new law 32108 on organized crime. For the prosecutor, in this case the six elements of organized crime are met, including the two of the new law: greater operational capacity and control of the value of an illegal market.
