Is there a remote possibility that Dr. Delia Espinoza returns as head of the Prosecutor’s Office?
More than remote, I would say it is almost imminent. The problem is time. Let’s look at a background. Zoraida Ávalos was disqualified by Congress, using an equally serious scheme, although in terms of intensity this is incomparable. Congress disqualified Ávalos, reproaching him for not having used a legal theory that justifies the investigation of sitting presidents, which was established by the Prosecutor’s Office in the period following his own, that of Pablo Sánchez. That is, Congress attributed Zoraida Avalos for not having used that theory in January 22, when it did not exist (it was approved in December of that year).
Very similar to what has happened now.
Of course, because in this case they attribute responsibility to Delia Espinosa for having signed a regulation that was not made by her, but by Mr. (Juan Carlos) Villena, before her term began. But I continue, with the Ávalos thing. She sued Congress for protection and regained her position. There is no reason for the scene not to be duplicated. Then, Espinoza returns. The problem is in time. This is so serious that he could also return for a precautionary measure like the one he recently won against the National Board of Justice.
This fact, that he is being judged for something he did not sign, is important. This is a regulation of the Prosecutor’s Office that attempted to correct the gap in the Congressional law that hands over the preliminary investigation of the crime to the Police. The issue is that this regulation does not go against what Congress said either.
Let’s see, when Congress approves that law that declares returning the preliminary investigation to the Police, a very complex debate opens up about a series of reasons. And of course from the sectors that, observing the scene, oppose a rule of that type, the proposal was not to apply that law and sue it for its unconstitutionality. And the Prosecutor’s Office sued it for its unconstitutionality, but decided that while the constitutional process was being discussed, the law should be applied in its literal content.
In other words, Mrs. Espinoza never obstructed this law.
Of course, he did not sign the regulations. But Mr. Villena’s regulation, furthermore, was not an act of resistance against the law. It was a violation of the law, which the Prosecutor’s Office proposed to apply and keep in force while its constitutionality was being discussed.
So how do you explain what happened? What justifies the sanction against Mrs. Espinoza?
It’s outrageous. We can disagree between all the polarities that exist in our environment, in the interpretation of what is legal, what is just and what is constitutional. We can disagree a lot. But there are unbreakable minimums. And in terms of liability proceedings, the unbreakable minimum is this: they can only sanction you for what they have accused you of. It’s the minimum. And the text of the accusation of the Permanent Commission declares, without nuances, that Mrs. Espinoza is going to be accused before the Plenary, to answer for a regulation that is foreign to her. This accusation maintains that the regulation is an act of disobedience, or contempt, or prevarication against Congress. The regulation is not. But in the Plenary, especially since the votes for reconsideration began, all the congressmen who have testified in public about the reasons why they voted against it, have not mentioned the regulation. They have made reference to the complaints filed by the Prosecutor’s Office against congressmen. And that was not the charging fact.
Therefore, she has a great argument to reverse that situation.
Yes, as in the case of Zoraida Ávalos.
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Now, from outside the law, this is basically understood as revenge. In other words, they have told the prosecutor: You investigate me and, therefore, I sanction you.
Revenge that could also be approached or explained as an act of whim, because it is constructed without any anchorage. The minimum anchor in a process of responsibilities is in that debate that arises when I accuse you and you defend yourself against that accusation. In this case, I accuse you senselessly and vote for something else.
Now, the initial accusation in the Permanent Commission included four Supreme Prosecutors.
Yeah.
How can you understand that only Mrs. Espinoza has been sanctioned?
That cannot be understood. This practice is absolutely arbitrary. It violates the minimum rule of equal treatment and exposes capricious decisions. This is something that has begun to be done in Congress, but the extreme they have reached in the case of Espinoza, in which they not only disassociate themselves from the list of characters in a story, but also disassociate themselves from the content of the events and then disassociate themselves from the accusation itself, with their votes, is an extreme that we have never seen before.
A concept that the people who accuse Mrs. Espinosa use is that of prevarication. They say: She is a prevaricating prosecutor, does that accusation have any basis?
No, the prevaricator is a construction that is used a lot by the current president of Congress, Mr. Rospigliosi, who I fear has not noticed that he is now not a congressman of a party, but the president of a State power, and uses that construction, prevaricators, to refer to all the judges who do not think like him. For some reason, Mr. Rospigliosi believes that he is in control of the meaning of the laws that, unfortunately, he has proven not to know at all. In fact, the construction does not correspond to what is prevarication in the Peruvian Penal Code, it is a construction that he has imagined, in which prevarication is equivalent to disobedience to Congress, when there is no constitutional rule that assigns to the Judiciary or the prosecutor’s offices anything similar to obedience to Congress. What exists is the opposite, a constitutional rule that allows the activity of Congress to be controlled, based on the Constitution, based on international treaties, especially those on human rights.
Now, it is true that prosecutor Espinoza was investigating a good part of the congressmen, but that itself raises doubts. Isn’t it something irregular that those who are being investigated vote to sanction her?
Absolutely. In fact, the Constitutional Court, in the case of (Arsenio) Oré Guardia, one of the media’s main lawyers, has already established a position. He was at some point on the set of Keiko Fujimori’s lawyers, in the Cócteles case, and Mr. (José Domingo) Pérez Gómez decided to investigate him, with Oré Guardia being the defense lawyer in a case that Pérez Gómez was leading. Let’s say, there is no reverse rule that allows us litigation lawyers to investigate prosecutors. Therefore, it cannot be possible for a prosecutor to investigate his counterpart. Then, the Constitutional Court published a ruling in favor of Oré Guardia against Pérez Gómez. And what he declared prohibited is for authorities with investigative powers to use them against their counterparts.
And does failure to do so constitute some type of crime?
Let’s go in parts. This rule prevents the National Board of Justice from launching a sanctioning procedure against Delia Espinosa while they constitutionally discuss the consequences of the (Patricia) Benavides case. I already told you, one cannot attack one’s counterpart. Pérez Gómez cannot with Oré. Nor can the Board with Delia Espinoza. Much less can the congressmen denounced or investigated by the Prosecutor’s Office vote to disqualify their counterpart. A count that shows how many congressmen linked to complaints from the Prosecutor’s Office have voted for disqualification would be enough to show that the vote is null in accordance with the Constitution.
There is another doubt that arises from Mr. Rospigliosi’s actions. He was the one who denounced prosecutor Espinoza and he himself led the session in which he was finally sanctioned. Does that constitute something irregular?
Yes of course. There the rule is impartiality. The rule assumes that no one can decide a case if he or she has taken part in its preparation. The rule is so important that it prevents, for example, a prosecutor who has been an investigator from later becoming a court judge. In our constitutional system, for example, the Permanent Commission, which is the accuser, cannot intervene in the plenary session in which the accusation is discussed. If the Permanent Commission, which is the accuser, cannot intervene, even more so neither can the congressman who provoked the case, who has a much more established party position than the Permanent Commission itself. At the end of the day we must be clear about this: in political trials, those that lead to disqualification, which is a political conviction, the rules of the process are the same as for a court, because in political cases, Congress is a court and disqualification is a sanction.
With the reinstatement of Luis Arce Córdova as supreme prosecutor, is the possibility open for the Board of Supreme Prosecutors to validate Congress’s disqualification of prosecutor Espinoza?
In fact, it can modify the correlation of votes within the Board of Supreme Prosecutors. I cannot imagine Mrs. Ávalos or Mr. Sánchez or Mr. Villena endorsing an arbitrary decision like that of Congress. But, although we cannot anticipate it, objectively the return of Mr. Arce could put the Board of Supreme Prosecutors in a “3 to 3”, which gives Mr. Tomás Aladino Gálvez, Prosecutor of the Nation, the possibility of resolving by arbitration. That is, forcing elections in which it could be settled again and generating an “accomplished fact”, which, being an act of government of the institution, would create new difficulties for this story.
