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. Jose Daniel Yampy Meche is a law student from UNSAAC and a member of CIED. He files this dispatch from Cusco. 

Corruption is an evil that affects the whole world, and Peru is no stranger to it. For a long time, Peru lived under the ravages of colonization while the Spaniards ruled over the native Peruvians. Corruption was so common then that most of the rulers, if not all, were immersed in it. Adding to that, the Peruvian natives of that time were treated as slaves, used for forced labor and to satisfy the needs of the Spaniards.

Peru eventually achieved its independence, thanks to Don Jose de San Martin, of Argentine nationality, and Simon Bolivar, of Venezuelan nationality. However, this did not mean an improvement. In his work “Classes, State and Nation in Peru”, Julio Cotler mentions that at the moment of achieving “Peruvian independence” the Peruvian aristocracy could not control the situation, and therefore the social hierarchy was not maintained. In this situation the country was fragmented into groups governed by the military, who soon sought greater power, land, servants and money; the military began to form alliances among themselves and their close circles. The state was in the hands of the military who governed with their own interests in mind.

Public officials were hardly exempt from corruption, since if they wanted to get more power or be richer they had to be in favor of those who had more power, and if they did not follow their wishes they would go through many problems.

At present, we are still observing corrupt behavior in politics.

On February 13, on many Peruvian newscasts, there was news about a statement by Jaime Villanueva regarding an agreement between Patricia Benavides and Pablo Sanchez regarding an investigation of Patricia’s sister. Jaime Villanueva was the main advisor to the suspended Prosecutor of the Nation (Patricia Benavides). Pablo Sanchez is the supreme prosecutor investigating Patricia’s sister, and Patricia Benavides’ sister is a superior judge (Emma Benavides).

A criminal process was initiated against Jaime Villanueva because there is evidence that indicates that he is part of a criminal organization. That is why in order to have benefits and not go to jail (at least until the investigation is finished), he became an effective collaborator, which means that he will share information in exchange for the penalty imposed on him not to be as high as it would be, as long as it is useful and true within the investigations, and that is why we are talking about his statement.

In this statement, reference was made to congressmen, prosecutors, former presidents, judges and more, which brings to light the existing corruption networks in Peru.

But this is not the first time that judges or prosecutors have been involved in acts of corruption. For example, the recent “Los Cuellos Blancos del Puerto” case was a corruption scandal that shook Peru’s judicial and political system. This case exposed a corruption network made up of judges, prosecutors, lawyers, businessmen and politicians who operated mainly in the port of Callao, although their activities extended nationwide. We also might mention the “Odebrecht” case, involving a Brazilian construction and petrochemical company that was involved in a massive bribery scandal that spread throughout several Latin American countries, involving high-level politicians and government officials, as well as judges and members of the judiciary.

Peru has signed the Inter-American Convention against Corruption (approved by Legislative Resolution No. 26757), with which it commits to create “mechanisms necessary to prevent, detect, punish and eradicate corruption” (Art. II.1 of the Convention). In addition, Article 44 of Peru’s Constitution says: “The following are primary duties of the State: to defend national sovereignty; to guarantee the full validity of human rights; to protect the population from threats against its security; and to promote the general welfare which is based on justice and the integral and balanced development of the Nation.” This allows the state to create mechanisms to control corruption.

With respect to such mechanisms, different laws have been created to try to control corruption from different dimensions (economic, political, social, etc.). In this way we find 2 types of norms: norms that have the purpose of being preventive measures, and norms that have the purpose of sanctioning.

As preventive rules we find:

1. Law No. 30424 – Law for the Strengthening of the Comptroller General of the Republic, in which measures are established to strengthen the control of public resources and promote transparency in governmental management.
2. Law N° 27444 – General Administrative Procedure Law, in which are contained principles and procedures that public officials must follow for the sake of transparency, citizen participation and accountability of public management.
3. Law No. 27815 – Law of the Code of Ethics of the Public Function, which contains ethical principles and standards of conduct to be followed by public officials seeks to promote integrity, honesty and responsibility in public service.
4. Law No. 29277 – Organic Law of the Judicial Branch: This law establishes the structure and functioning of the Judicial Branch in Peru. It contains provisions on judicial ethics, the independence of judges and the disciplinary responsibility of magistrates.
5. Law No. 26397 – Organic Law of the National Judicial Council: This law regulates the organization and functioning of the National Judicial Council (CNM), the body in charge of selecting, appointing and sanctioning judges and prosecutors in Peru. It seeks to guarantee the suitability and integrity of the members of the judiciary.
6. Law No. 29191 – Organic Law of the Public Prosecutor’s Office: This law establishes the organization and competencies of the Public Prosecutor’s Office in Peru, including the National Prosecutor’s Office and the specialized prosecutor’s offices for corruption crimes. It seeks to strengthen the capacity of the Public Prosecutor’s Office to investigate and sanction acts of corruption in the judicial sphere.
7. Law No. 30077 – Law against Organized Crime: This law establishes measures to prevent and combat organized crime, including corruption in the judicial area. It contains provisions for the protection of witnesses and effective collaborators, as well as for the confiscation of illicitly obtained assets.

Regarding sanctioning rules:

1. Law No. 30076 – Law that establishes the administrative liability of legal persons in corruption offenses: This law establishes the administrative liability of legal persons (companies, organizations) in corruption cases. It allows sanctioning companies involved in acts of corruption, including the payment of fines and the prohibition to contract with the State.
2. Law No. 30737 – Law that strengthens the fight against corruption, organized crime and corruption of officials: This law seeks to strengthen measures for the prevention, investigation and punishment of corruption and organized crime. It includes provisions to improve coordination between the institutions in charge of combating these crimes and to protect witnesses and effective collaborators.

Public officials accused of corruption may face administrative sanctions (they may be temporarily suspended from their functions, removed from office or professionally disqualified, depending on the seriousness of the situation), as well as criminal sanctions (when there are indications that a public official has committed criminal offenses, such as bribery, prevarication or others related to corruption), and civil sanctions (mainly for compensation).

However, despite the existence of different laws and mechanisms that seek to eliminate corruption, acts of corruption have not ceased in Peru, and in many cases the fact that judges are involved in political issues due to particular interests does not allow the law to be interpreted objectively, but rather to be interpreted based on particular interests. In some cases, they choose to omit some law. In other cases, they disregard the right to due process and seek to archive the processes initiated or hinder them.

In conclusion, corruption has existed in Peru for a long time and to date we still have the same problems, i.e., a small group of people who hold power seek to do what they want in Peru without respecting the laws or social or individual rights.