During the reading of the resolution on the request for preventive detention for 36 months against Nicanor BoluarteJudge Richard Concepción Carhuancho decided to disapply the laws on organized crime 32108 and 32138. On Sunday, November 17, after more than two hours of arguments, he concluded that both laws, approved by Congress, are unconstitutionalhave their own name and benefit public officials.
In his presentation, Carhuancho explained that the law modifying the crime of criminal organization left the essential elements of the crime out of its reach, such as the commission of crimes that do not provide for penalties exceeding six years. “This rule was created with own nameand not with the aim of legislating in general terms, but to favor certain groups of people. (…) Although it has been repealed (law 32108), it has left consequences disastrous“were Carhuancho’s expressions regarding the norm.
Furthermore, the judge explained that this law was designed to benefit public officials, so it should not be applied in this case, since it contravenes the Political Constitution of Peru. “This law was created for the purpose of benefit public officialsexcluding them from the crime of criminal organization,” he added.
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Concepción Carhuancho stressed that in this request for preventive detentionconstitutional diffuse control is being used, which allowed laws 32108 and 32138 to be disapplied. The judge stressed that the crime of criminal organization must be governed by the previous lawnot because of the regulations recently approved by the Legislature, which, according to its analysis, does not comply with constitutional requirements.
Finally, in his argument, Carhuancho made reference to the Palermo Convention, to which Peru is a party. He explained that, according to said convention, the criminal organization should not be limited to crimes that carry sentences greater than six years, but rather establishes a minimum sentence of four years, which reinforces its position on the inapplicability of the new laws 32108 and 32138 in this case.
This is not the first time that he has justified the non-application of the law in the case.
During the month of October, Richard Concepción Carhuancho was the second magistrate in declaring Law 32108 inapplicable, applying diffuse control and conventionality control. During the investigation of the case The Waykis in the Shadowthe judge highlighted that the law in question could be considered “with its own name”, since it seems to have been designed with the purpose of benefiting whoever promoted it.
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Specifically, he pointed out that Congressman Waldemar José Cerrón Rojas, author of the law, is under investigation for criminal organization and influence peddling in the Dynamics of the Center case. Therefore, Concepción Carhuancho stressed that the parliamentarian, who also had requested an exception of inadmissibility of action against him, used this same law to request that the investigation be closed, arguing that the crime of criminal organization would not be applicable, given that it did not exceed a six-year sentence.
In her argument, Concepción Carhuancho cited the request of Cerrón, who alleged that the criminal organization of which he would be a part did not commit serious crimes and did not seek to obtain economic benefit, which according to him would make it atypical. Carhuancho concluded that this law, promoted by Cerrón, had the objective of modifying the regulations to favor certain individuals, which in his opinion constitutes a violation of constitutional principles and international regulations on human rights.
