DispatchesPeruvian law students from the Facultad de Derecho, 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 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. Samanta Berenice Chavez Quispe is a law student from UNSAAC and a member of CIED. She files this dispatch from Cusco.
Peru has experienced years of social discontent and unhappiness with our political representatives, especially in the Executive Power and the Legislative Power of the country. From 2016 to this day, many say that Congress acts on behalf of themselves more than of the population. For this reason Peru has not been able to advance due to the inability of Congress to work jointly with the Executive Branch and the issuance of laws favorable to members of Congress and their personal interests. Despite the fact that social discontent continues to increase, in 2022 Congress continued to approve laws aimed at ensuring the personal interests of its members, ignoring the population and its current needs. One of those events is the one I will tell you about today.
On June 21, the Plenary of the Congress of the Republic of Peru approved Legislative Resolution 5432, by which former Attorney General and national Prosecutor Zoraida Ávalos was disqualified from public service for 5 years for the alleged violation of article 159 paragraph 4 of the Political Constitution of Peru (1993). The decision was based on 73 votes in favor, 12 against and 8 abstentions. According to Congress, the reason for this disqualification is because:
It breached the obligations inherent to the Public Prosecutor’s Office to exercise criminal action, being precisely the National Prosecutor, the only legitimate official to investigate the alleged crimes committed by high officials and, nevertheless, having warned of the denounced existence of irregular acts with characteristics crimes committed by the then President of the Republic, Pedro Castillo. (El Peruano Official Gazette, June 21, 2023)
In addition to that, another Legislative Resolution, number 5433, was approved, with which Zoraida Ávalos is criminally charged for the alleged commission of the crime of omission, refusal or delay of functional acts, whose criminal type is found in article 377 of the Peruvian Penal Code. That is, Congress disqualifies her and criminally accuses her of inaction, for not having accused Martín Vizcarra and Pedro Castillo (both former presidents). However, the facts show the opposite. To understand this, we recap what happened when she was the nation’s prosecutor, in the period 2019-2022.
In 2020, the former Prosecutor of the Nation and today the former Supreme Prosecutor, Zoraida Ávalos, began an investigation into the president at that time, Martín Vizcarra, for the case of the hiring of Richard Cisneros. Said act marked a milestone because until then no investigation had been carried out on any president during the exercise of his public function, based on article 117 of the Political Constitution of Peru (1993).
Until then, that article was interpreted with the understanding that no accusation could be initiated or the current presidents investigated; however, Zoraida Ávalos mentioned that the article limits the action of accusing but not investigating. For this reason, she changed the precedent and opened an investigation against Martín Vizcarra, which for the Congress of the Republic apparently has no value in the discussion of his disqualification. In addition, in the case of former president Pedro Castillo, she also opened an investigation and carried out procedures such as collecting his testimony, which was contradictory. Thanks to this, his accusation was established in the tax file.
In the words of Rosa María Palacios in her program “Without a Script ” (La República, 2023), she mentions the list of senior officials to whom she initiated an investigation, there were 43, among whom are current congressmen, former presidents, among others; some names are Yesenia Ponce, Luciana López, Pedro Gonzalo Chávarry , Roberto Vieira, Héctor Becerril, Edgar Alarcón, Javier Velázquez Quesquén, Cesar Vázquez, Jorge del Castillo, Pedro Pablo Kuczynski, Manuel Merino, Cesar Hinostroza, Iván Noguera, etc. All these investigations, for the short period as Prosecutor of the Nation, were quite a few compared to her successors who barely reached 3 investigations in complete periods (5 years). Despite the investigations carried out and the corresponding accusations, Congress archived 41 and only approved 2, those of Luciana León and Yesenia Ponce. These actions make us reflect and ask ourselves if the Congress debated objectively or only looked after its particular interests, as we have been observing since its inauguration until now.
On the other hand, the current National Prosecutor, Patricia Benavides, on previous occasions showed a certain resentment towards Zoraida Ávalos, since when Patricia Benavides worked as a prosecutor attached to the National Prosecutor’s Office, she received all the complaints about magistrates, made a report so that the National Prosecutor of that time approves it. In the words of Zoraida Ávalos, in the interview conducted by Rosa María Palacios, she mentioned:
In April 2021, her sister’s folder arrives. Just in case, they let me know that the folder was arriving at the doctor’s office (Patricia Benavides). She was in charge of that office and I say that, by no means, go into that office, (but) go to mine and I’ll see. (Costilla, June 23, 2023)
This was due to the conflict of interest that would exist between Patricia Benavides and the case of her sister Emma Benavides, which is why Zoraida Ávalos referred the case to Judge Bersabeth Revilla. As soon as Patricia Benavides took office as Prosecutor of the Nation, she revoked the appointment of Judge Revilla, who was investigating her sister Emma Benavides for allegedly accepting bribes to free people involved in drug trafficking activities. As a consequence, the case was transferred to another prosecutor who archived himself.
So we ask ourselves, is it possible that Congress disqualified Zoraida Ávalos for her opinions and only sought a pretext to do so? We understand that the Judiciary is the third power of the State, which allows a system of checks and balances, however, if we have a Legislative Power that disqualifies without truthful grounds and only for personal trials, can we maintain that balance of powers? When observing the Peruvian reality, it seems that not.
Zoraida Ávalos in a recent interview pointed out “There is no democracy in Peru”, “There is no justice”. If a former public prosecutor of the nation says so, how can we citizens be sure that justice does exist for us? How do we live in a country that is politically crumbling and whose population does not have true representatives who look after society and not their personal interests?
Law and politics in theory are the best for a nation, but in practice we observe that this does not happen. Every day there is greater social discontent and public indignation and we continue to see how the people who hold power use it for personal benefit.
