In a fight between illegality organized in the Congress of the Republic against the National Prosecutor’s Office and the Public Ministry, three congressmen promote a constitutional complaint that seeks to overthrow and modify the composition of the Board of Supreme Prosecutors.
In passing, the congressmen seek to impose, by military force, that is without observations, the set of laws that they have been dictating in favor of informal mining and organized crime.
To do this, they use the parliamentary power to investigate and sanction high public authorities who, in the exercise of their functions, commit some constitutional infraction or crime.
In the present case, the congressmen, the former Minister of the Interior, Fernando Rospigliosi Capurro of Fuerza Popular; retired sailor José Cueto Aservi, from Honor and Democracy; and retired police officer Alfredo Azurín Loaiza from Somos Perú, have put the highest governing body of the Public Ministry in the spotlight: the Board of Supreme Prosecutors.
The old Montesinos recipe
This political attack against the administration of justice reminds the acts that preceded the self-coup of April 5, 1992. With the advice of Vladimiro Montesinos, Alberto Fujimori developed a massive media attack to discredit judges and prosecutors.
That served as an excuse to intervene in the Judiciary and the Public Ministry with the aim of reforming them, but in the end they were only placed under the control of provisional judges and prosecutors at the end of the regime. That process generated the rise of Blanca Nélida Colán in the Public Ministry and Alejandro Rodríguez Medrano in the Judicial Branch.
Constitutional complaint without evidence or support
Rospigliosi, Cueto and Azurín have denounced thatthe four members of the Board of Supreme Prosecutors: Juan Carlos Villena Campana, Delia Espinoza Valenzuela, Zoraida Ã�valos Rivera and Pablo Sánchez Velarde have committed the crimes of abuse of authority, prevarication and generic falsehood and, in addition, for violating the Constitution.
The four supreme prosecutors who make up the Board of Supreme Prosecutors, say the complainants, would have violated the Constitution and committed a crime for appearing recorded in the General Instructions issued by the acting Prosecutor of the Nation, Juan Carlos Villento “to standardize and optimize fiscal action in the investigation of crime” following Law 32130.
In principle, nowhere in said document, unlike what the Congressmen say, are instructions given not to comply with the aforementioned law. What Villena did is provide guidelines so that all prosecutors follow the same path when applying law 32130, within the framework of the Constitution, respect for legality and due process. That is common when faced with procedural rules.
Respect the Constitution and comply with the Law
A General Instruction serves prosecutors, auxiliary and support officials, lawyers and the general public. Everyone has to be clear and know in advance how Law 32130 will be fulfilled in real life, to be able to exercise their functions and defend their rights.
It should be remembered that the New Criminal Procedure Code was approved in 2004, but it only began to be applied in a phased manner at the level starting in 2006 in a process that lasted 15 years, until 2021.
Until 2004, crime investigation was in charge of judges, with the 2004 reform it recently passed into the hands of prosecutors. This process began in Huaura in February 2006 and ended in Lima, in 2021at a total cost of more than 1,500 million soles.
The congressmen assume that their political reform of the criminal process, approved without further legal debate and knowledge of the community, will begin to be implemented and fulfilled within 24 hours and at zero cost.
By not doing so, prosecutors would have allegedly committed three crimes. However, beyond the statement, the complaint does not specify the specific act contrary to the Law that each of them carried out. The police today are not in logistical and personnel conditions prepared to carry out the investigations, in addition, the infiltration of common and organized crimeto.
Stated in this way, the complaint is only a pretext to dismiss the members of the Board of Supreme Prosecutors. Then influence so that the National Board of Justice, starting in January 2025, appoint new supreme prosecutorsrelated to the political forces that control parliament.
The alleged crimes are not duly justified
Former prosecutor MartÃn Salas explains that the crime of malfeasance is only committed by judges or prosecutors when issuing a resolution or provision within the framework of an investigation or judicial process, not in an administrative document.
The complaint does not indicate what fact or false information that the four supreme prosecutors had committed or introduced in the General Instructions, beyond the fact that the reference to the Board of Supreme Prosecutors appears in the header of the document.
Nor is a specific act of Abuse of Authority established when issuing a General Instruction, which appears with the signature of the acting Prosecutor of the Nation, Juan Carlos Villena Campana.
What would happen if the Board of Supreme Prosecutors falls?
If the four titular supreme prosecutors are disqualified from holding public office and are criminally denounced, the Public Ministry would be headless without a prosecutor of the Nation and without its highest governing body. Investigations of senior public officials would be paralyzed.
Provisional supreme prosecutors would have to be called to reconstitute the Board of Supreme Prosecutors and elect from among them a new interim prosecutor of the Nation, who would remain indefinitely. This is provided that they resolve in accordance with the interests of Congress or they could easily be removed.
Until the Board of Supreme Prosecutors is reconstituted and a new prosecutor of the Nation is elected, there will be no one to develop the complaint against the four sanctioned titular supreme prosecutors.
The four sanctioned supreme prosecutors will resort to the constitutional system to defend their rights, through Amparo Actions and precautionary measures. These will probably be resolved in the Constitutional Court or the Inter-American Court of Human Rights.
As long as the sanction of Congress is not final, the National Board of Justice could not call a Public Competition to elect new supreme prosecutors. Even if the JNJ does not expect a final decision, the selection process will take time. There will be a period of time in which the Public Ministry will be left in provisional hands.
The resulting vacuum will give rise to various actions to impose the return of Patricia Benavides or of the supreme prosecutors removed by the scandal of the “Los Cuellos Blancos del Puerto” case, such as Pedro Chávarry, Tomás Gálvez and Luis Arce Córdova to fill vacancies. Those who support the complaint already promote the review of their cases.
