By revoking the preventive detention of Nicanor Boluarte, brother of the President of the Republic, Dina Boluarteby majority, the judges of the Appeals Chamber considered that there is no concrete evidence that in the case of the appointment of prefects and sub-prefects there is a crime of bribery; Meanwhile, they pointed out that influence peddling He will receive a prison sentence of less than four years.
This is the second failure of the Judiciaryin less than three days, which favors the coalition that governs the Executive Branch and Congress. On Monday, the Third National Collegiate Criminal Court annulled the trial of the presidential candidate Keiko Fujimori and Popular Force. Meanwhile, on Tuesday, the Executive observed the signature of the law that sought to restore the preliminary detention. On Wednesday, the preventive detention of Nicanor Boluarte.
The revocation of the preventive detention that the Judge Richard Concepción Carhuancho issued against Nicanor Boluarte, on November 19, 2024, was foreseeable since the Supreme Court established that judges must comply with the new regulations on organized crime, even if it was detrimental in the fight against crime.
The judges’ motives
However, the decision of the majority of the judges of the Fifth National Criminal Court of Appeals, Iván Quispe Aucca and William Lugo Villafanagoes beyond simply repealing preventive detention by the laws of Congress. They question the entire investigation of the Public Ministry. Judge María Felices Mendoza, the third member of the court, although she also ruled in favor of the nullity of without preventive detention, considered that another judge should reassess the request of the Prosecutor’s Office
The judges’ reasons are:
In the resolution revoking the preventive detentionthe appeal judges establish three arguments:
Onethe main reason for the majority vote, applied the laws 32108 and 32138 dictated by Congress that modify the Penal Code by introducing new definitions and requirements for the crime of organized crime.
Twoconsidered that in a preventive detention hearing the constitutionality or unconstitutionality of a Law, judges should only apply it and prefer the one most favorable to the defendant.
Threeconsidered that it is possible that due to influence peddling, if found guilty, they will not receive an effective prison sentence, while, regarding the alleged briberybetween a private person and a public official, it is possible that there is no crime
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Nicanor Boluarte He had remained in hiding since November 17. The police were never able to locate his whereabouts and his sister’s government, Dina Boluarte, refused to include him on the most wanted list and offer a reward for information leading to his capture.
Other beneficiaries of the decision of the Appeals Chamber
From now on, he can walk freely on the streets, there is no need to hide anymore.
However, this judicial decision is not an acquittal nor does it affect the seriousness of the suspicions against him. The investigations continue until the facts are fully clarified.
The appeal judges granted him simple appearancewhich implies that he can face the investigations in freedom, with the condition that he attends all the summons that are made to him.
The revocation of preventive detention also favors the freedom of Jorge Luis Ortiz Marrerosformer director of the General Directorate of Internal Government,Zenovia Griselda Herrera Vásquezformer head of Qali Warma in the San Martín region and the brothersJorge Chingay Salazar and Noriel Chingay Salazar. These four characters also had preventive detention, but were never captured.
The motives of Judge Concepción Carhuancho
The E.team 5 of the ex Special Team of Prosecutors Against Corruption of Power (Eficcop) investigates Nicanor Boluarte for allegedly being a member of a criminal organization that, using its proximity to the government, committed influence peddling and bribery (collection of quotas) for the appointment of prefects and sub-prefects, with the aim of creating a political party “Citizens for Peru“to support the government.
The prosecution requested preventive detention against the president’s brother and the four aforementioned figures on August 7, 2024 with the old organized crime rule in force. On August 9, the day called by the judge for the public hearing, the government published the Law 32108 that modified the definition of organized crime.
During the debate on preventive detention, on October 19, 2024, the Law 32138 which with slight modifications ratified the new definition of organized crime. Given both publications, the defense lawyers asked the judge to evaluate and apply said laws.
The preparatory investigation judge Richard Concepción Carhuancho refused to comply with these laws by applying Diffuse Control and Constitutionality Control, as they were contrary to the 1993 Constitution and the American Convention on Human Rights. Furthermore, it points out that these are laws approved and promulgated by Congress that are not in accordance with the general interest of society and the reasons for the legislative changes have not been explained.
Likewise, the judge pointed out that these would be laws with their own name since they have been promoted by the congressman Valdemar Cerrón Rojasthe same one that would be prosecuted for criminal organization, and that had the support of Congress and the Executive Branch where there are also leaders prosecuted for said crime.
“The crime of criminal organization must be governed by article 317 of the Penal Code, modified by DL 1244 (of October 27, 2016), a previous law and the law cannot be applied. Law 32108subsequent law despite being more favorable to those investigated because it is contrary to the Political Constitution of Peru and the American Convention on Human Rights, in application of Diffuse Control and Conventionality Control,” stated the first instance judge.
The fundamentals of the Appeals Chamber
The senior judges Iván Quispe Aucca and William Lugo Villafana They considered that since preventive detention is a precautionary measure that seeks to contain the dangers of escape and obstruction and is not a sentence, the constitutionality or unconstitutionality of a Law cannot be discussed, since that creates a state of uncertainty.
Therefore, as long as this situation of uncertainty is not resolved through the legally established procedures (unconstitutionality claim before the Constitutional Court or a pronouncement from the Constitutional and Social Chamber of the Supreme Court) “a person cannot be kept deprived of his or her freedom.”
“Consequently, it does not correspond to a precautionary scenario to establish the constitutionality or conventionality of a substantive law norm, the resolution that pronounces on a preventive detention requirement It is not an anticipated sentencing sentence.; For its imposition, the judge must verify compliance with the budgets established” in the Law, “evaluating its application to avoid the risks of flight or obstruction of a criminal process.
YOU CAN SEE: Judge who approved accusation against Keiko Fujimori resigned, but the Judiciary ignores the ruling of the TC
Then, they point out that the judge Concepción Carhuancho allowed the request for preventive detention built on a penal norm, although not repealed, to be discussed, substantially modified. He notes that these modifications “forced the Public Ministry to “reformulate its requirement and adapt it to the new legal parameters.”
In another aspect, they evaluate that given that the criminal organization would be dedicated to committing crimes of influence peddling To date, there is not enough evidence to suggest that, if they are found guilty, an effective prison sentence will be imposed.
While in the bribery crimewhere the meeting of an individual and a public official is required, “the offer of an advantage to someone who does not have that condition could not configure that modality” so there would not even be a crime.
Finally, they conclude that since the probability of a high sentence is not met, it is not appropriate to dictate preventive detention, which means they no longer evaluate whether there is a risk of escape or obstruction of the investigation.
