Peruvian law students from the Facultad de Derecho y Ciencias Políticas, Universidad Nacional de San Antonio Abad del Cusco are reporting for JURIST on law-related events in and affecting Perú. All of them are from CIED (Centro de Investigación de los Estudiantes de Derecho, a student research center in UNSAAC’s faculty of law dedicated to spreading legal information and improving legal culture through study and research, promoting critical and reflective debate to contribute to the development of the country. Vanesa Escobar Marcavillaca is a law student from UNSAAC and a member of CIED. She files this dispatch from Cusco.
The prohibition of prosecution beyond a certain period of time of a person who presumably committed a crime is a well-known rule in law. In Peru, this rule is known as “prescription of legal action”, which basically means that at some legally-defined point a criminal suit is extinguished, with no possibility of continuing with the process or the investigation. When the prescription operates, the criminal suit ends not in a normal way, but because the Peruvian criminal law establishes a time limit. That’s why prescription rules must be very clear for their proper execution.
In Peru, the criminal process has three stages: the preliminary investigation, the middle stage and the judgement. In the first stage, there’s an act when the Prosecutor decides it’s time for the Judge to join the process because there are enough elements that might reveal that a crime has been committed. This act is known as the formalization of the investigation, which, according to the Criminal Procedure Code, was a cause for suspending prescription (art. 339.1). But for how long? This is a question legal experts have had to deal with through the years.
In an attempt to answer it, Peru’s Supreme Court has established that, a suspension can’t exceed double of the duration of the potential criminal penalty plus half of it (Acuerdo Plenario N° 3-2012). For example, if murder is punished with 6 years of prison, once the investigation is formalized the suspension of prescription cannot be more than 15 years (the double is 12 plus the half which is 3). That’s a very reasonable time to investigate the case.
However, this criteria was changed with the publication of Law N° 31751 on May 18th, which modifies the Criminal Code and the Criminal Procedure Code establishing a temporal limit of the prescription suspension. This time, in any case, the suspension of the prescription cannot exceed a year.
But want we what we want to report on JURIST this time is not related to the legal analysis of that law. There’s another event that has since overshadowed any such discussion.
Since he was elected, Alejandro Soto, member of the Peruvian Parliament representing Cusco, has been a focus of controversy because of several criminal proceedings he has been involved in. Until June of this year, Soto was the subject of 59 separate criminal investigation files. Some of the crimes investigated include illegal enrichment, abuse of authority, usurpation of functions, and fraud.
In the last case, Soto was accused of improperly charging the amount of S/.10,000.00 (ten thousand soles) when he was legal advisor to the Wayna Picchu company when he did not even fulfill with his contract. In addition, he was alleged to have sold the company a piece of land irregularly, by falsifying its extension, hiding that it belonged to him and making them pay taxes inappropriately, among other things.
On June 24, after the publication of law N° 31751 and after the request of Soto’s Lawyer, the Third Criminal Court in Cusco declared the prescription of the criminal action in the Soto case, prohibiting the continuation of criminal proceedings against him. And that’s because under the recently published law, the action had been extinguished in December 2022, having been formalized in December 2021.
Unbelievably, the Prosecutor didn’t appeal this decision. And as a result, on August 14th, the same court declared the Criminal Court’s decision final, meaning that as nobody questioned the resolution, it was now definitive and unchangeable. Meanwhile on August 4th, the Prosecutor of the case, José Alfredo Espinoza Espino, was actually promoted in his position by parliamentary Resolution N° 1924-2023-MP-FN[2].
But there’s one more fact that is even more surprising: Soto was also the author of law N° 31751, which reduced the suspension of prescription to just one year. Apparently his other strategies to contest the criminal proceedings against him were not as good as designing a legal way to escape from justice once he was elected a member of Parliament. Clearly, we have very smart people working in the Parliament. If they use their ability for the public good or private benefit, however, is clearly another matter.
