Coronavirus reveals shortcomings in Peru’s prosecutorial system
Peruvian lawyers hope prosecutors will be able to conduct investigations more efficiently after being forced to work remotely amid the coronavirus pandemic.
Peru declared a state of emergency in March due to the spread of the virus, imposing restrictions on travel out of the country and ordering people to remain indoors except for essential travel.
The state of emergency had an immediate effect on the country’s highest-profile investigations. The Attorney General’s Office has suspended its flagship probe into bribes paid by Brazilian construction company Odebrecht to Peruvian politicians until at least 26 April. Peru is seeking US$1.1 billion in damages from Odebrecht as part of its investigation into the matter.
Before the lockdown, Peruvian prosecutors routinely met and collaborated with their Brazilian counterparts. However, bans on cross-border travel in Brazil and Peru will have likely rendered such meetings impossible.
The coronavirus has also caused problems for Peru’s paper-based prosecutorial system. It has a physical docket comprising thousands of documents detailing the status of investigations, case management and negotiations between companies and the authorities in ongoing proceedings.
Lawyers suggest that the lockdown will have thrown up problems with conducting transnational work and also accessing hard-copy documents stored in the office.
“Under the Peruvian criminal process, some things can be done through technology, but most things need to be done in person,” said Daniel Ramos at Philippi Prietocarrizosa Ferrero DU & Uría (Peru) when speaking to Latin Lawyer's sister publication Global Investigations Review. “Prosecutors will need to deal with these problems. It will have been very difficult for them to do in the last three weeks,” he added.
Juan Diego Ugaz at Payet, Rey, Cauvi, Pérez Abogados in Lima said the “monumental” size of Peru’s hard-copy dockets, and the fact that they are stored in prosecutors’ offices will have certainly slowed the rhythm of their work.
Lawyers hope that the Attorney General’s Office will subsequently move to a more digitised filing system, storing its dockets on a computer system that allows prosecutors and lawyers alike to access information remotely.
“It’s our first experience dealing with this, in which the judicial system has essentially been closed, so for the future, some technology would be needed to ensure government and public bodies continue to function normally,” Ramos said.
Peru has been touted as the most active anti-bribery enforcer in the Latin American region, perhaps second only to Brazil in its investigation of the Odebrecht case. Prosecutors have charged four former Peruvian presidents with Odebrecht-linked corruption, including Alejandro Toledo, who is fighting extradition from the US, and Alan García, who died by suicide in April 2019 as police attempted to arrest him. All four former presidents have previously denied wrongdoing.
Lawyers hope that prosecutors will be able to keep the ball rolling and overcome the slowdown caused by the coronavirus, taking any new techniques learned into future investigations once the pandemic subsides.
“Public officials like prosecutors are not used to working through video conferencing, while the private sector is,” said Héctor Gadea at Rebaza, Alcázar & De Las Casas in Lima. “It’s just a matter of getting people adjusted.”
Gadea said he thought the lockdown and the need to overcome travel bans would probably provoke change in how the Attorney General’s Office operates, especially when there are cheaper ways to conduct meetings and interviews with witnesses.
“We have a big country and people travel a lot, so the positive thing from this is that judges, prosecutors and administrative agents will realise it’s not necessary to have all these physical meetings,” he said. “It will make things more efficient.”
Peru’s criminal procedure code does not prohibit prosecutors from remotely carrying out any interviews of suspects and witnesses. However, Ugaz said some prosecutors are unaware that Peruvian law allows interviews to be conducted at a distance.
He cited a recent example of a client who was arrested for being outside while making a delivery of veterinary medicine. As Ugaz himself was not allowed outside, he called the local prosecutors who he said incorrectly told him that Peru’s criminal code prohibited him from remotely making a statement in defence of his client. Ultimately, Ugaz’s colleagues near the prison were able to resolve the situation by visiting the police station.
“Under our criminal procedure, the lawyers of the accused have the right to participate in any kind of hearing,” Ugaz said.
The Attorney General’s Office did not respond to a request for comment.
This article was first published by Latin Lawyer's sister publication Global Investigations Review on 16 April.