Public prosecutors and their role in Peru

In the event that any sector of the State requires legal representation before a jurisdictional body, the one in charge of defending the rights and interests of the State is carried out by the State Judicial Defense Council through the Public Prosecutors.

This council was created by Decree Law No. 17537 and is an organ of the Ministry of Justice. Its function is to defend in a better way and permanently the interests of the state, through meticulous and team work.

The Public Prosecutor is an official who, by constitutional mandate, in the article exercises the defense of the interests of the State, Regional Governments, autonomous Constitutional Bodies and other dependencies of the State. It turns out to be the State Attorney and defends the State entities in the Lawsuits that they promote against third parties or that are promoted against it.

It has the same hierarchy as a Superior Prosecutor and enjoys the exercise of its functions with the prerogatives of said magistrate.

I. Council of judicial defense of the state

It was created by Decree Law No. 17537, and is the body of the Ministry of Justice in charge of coordinating the activities of Public Prosecutors.

As established by Chapter II of Decree Law N ° 17537 - Law of Representation and Defense of the State in Judicial Matters, in accordance with article 26 of Decree Law N ° 25993, the Council of Judicial Defense of the State is an organ of the Ministry of Justice, constituted by the titular Public Prosecutors.

According to Article 2 of the Regulations of the Judicial Defense Council of the State, it coordinates and supervises the defense of the State; In addition, it is a body for consultation and advice regarding legal questions on matters related to said matter. Likewise, it pronounces on the creation of new Public Prosecutors' Offices and resolves the competition problems that arise between them, as well as provides technical coordination to the set of Public Prosecutors, promotes the issuance of the necessary regulations for the better defense of the State, sanctions the Regulatory provisions for all Public Prosecutors and centralizes their statistical information. Its competition is at the national level.

According to article 4 of the aforementioned Regulation, which establishes the functions and powers of the State Defense Council and its most important presidency, they are:

• Formulate policies related to the defense of the State.

• Supervise and control the exercise of the defense of the interests of the State, at the national level, through its president, carrying out an adequate registry and control for this purpose.

• Approve the measures that are necessary for the fulfillment and application of Decree Law N ° 17537.

• Dictate the guidelines and define the policies to standardize criteria and work methodologies of the Attorney General's Offices.

• Prepare and propose draft agreements with public or private organizations.

• Centralize the statistical information of the Public Prosecutor's Offices.

• Receive annually the reports of the Public Prosecutors on the movement of the trials.

• In general, it has broad jurisdiction over the exercise of the judicial defense of the State.

The Public Ministry is made up of Councils and Commissions, one of them is the Council of Judicial Defense of the State, constituted by the Attorneys, which issues an opinion on legal questions of interest to the judicial defense of the State, exercising this function on behalf of the President of the Republic, as we will see later, also at the request of the other Presidents of the Public Powers, the President of the Council of Ministers, and the Ministers of State.

It serves as a body for statistical centralization, technical advice and coordination, administrative interpretation of legal principles and provision of regulations of a regulatory nature for all Attorneys General of the Republic.

II. Appointment of the public prosecutor

There are three types of Attorneys, each having their own requirements for designation, Public Attorneys, Assistant Public Attorneys, and Ad-Hoc Public Attorneys.

All three must be appointed by the President of the Republic, by Supreme Resolution of the Justice Sector, with the endorsement of the Minister of Justice and the President of the Council of Ministers and the respective Ministers.

These attorneys are administratively dependent on the sector they defend, that is, the corresponding remuneration, fees and other benefits must be based on their Budget Specifications.

This Public Prosecutor and Adjunct are a permanent part of each Public Prosecutor's Office, on the part of the Ad-Hoc Public Prosecutor this is designated in an exceptional way and under the same requirements of the holder and the adjunct.

1. Requirements to be a Public Prosecutor (Art. 5)

a) Be Peruvian by birth;

b) Have practiced law for fifteen (15) consecutive years, having to prove this situation with a copy of the diploma of incorporation to the respective Bar Association.

c) Be registered and comply with the obligations that allow the exercise of the profession, which will be accredited with the information provided by the respective Bar Association regarding their status as a qualified member; and,

d) Not be subject to the prohibitions and incompatibilities established in Supreme Decree No. 023-99-PCM, for which they must sign an Affidavit, according to the format prepared by the State Judicial Defense Council.

2. Requirements to be a Deputy Public Prosecutor (Art. 6)

a) Be Peruvian by birth;

b) Have practiced law for five (05) consecutive years, having to prove this situation with a copy of the diploma of incorporation to the respective Bar Association.

3. Procedure for the Appointment of the Attorney

First it is necessary that the Heads of the Sectors or Organizations that need the intervention of an Attorney, must propose the appointment of the same. This proposal must be through the Public Ministry and this is in charge of processing it before the President of the Republic, who must, for this purpose, issue a Supreme Resolution.

Before being appointed, the President of the State Judicial Defense Council must issue a prior technical opinion on compliance with the requirements for the position and must endorse the corresponding Supreme Resolution.

Once the corresponding Supreme Resolution is signed, certified copies of it are sent to the President of the Judicial Defense Council of the State and he transmits it to the lawyers and to the respective Heads of the Sector.

Once they take office, they must be sworn in before the President of the Superior Court of Justice of Lima.

4. Public Prosecutors

• Ministry of Justice - Defense Council

• Legislative Power. Of. Of the Presidency of the Council of Minister

• Judicial Power • Ministry of

Economy and Finance

• Ministry of the Interior

• Ministry of the Interior - Illicit Drug Trafficking

• Ministry of the Interior - Related to Terrorism

• Ministry of the Interior - Related to the Police National and Health of the PNP

• M. Foreign Relations

• M. of Agriculture and Public M.

• M. Industry, Tourism, Integration and International Trade Negotiations

• M. Energy and Mines

• M. Transport, Communications, Housing and Construction

• M. of Health

• M. of Fisheries

• M. of Education

• M. of the Presidency

• Ministry of Labor and Social Promotion

• Office of the Comptroller General of the Republic

• Ministry of Defense Related to the Army

• Ministry of Defense Related to the Navy

• Ministry of Defense Related to Aviation

• National Superintendency of Customs and SUNAT

• Superintendency of Banking and Insurance

• Electoral System

III. Functions and performance of the public prosecutor

1. Functions of Public Prosecutors

• Defend the affairs of the State before any jurisdictional body of the different Judicial Districts of the Republic, without the need for prior registration in the registry of the Superior Courts other than that of the capital or of the respective bar associations. This power is extended to the Deputy Procurator and the Lawyers to whom representation has been delegated.

• Request reports, antecedents and collaboration from any agency or department of the National Public Sector.

• Intervene in all instances of ordinary and exclusive jurisdiction. In criminal matters, the Prosecutors will act as complainants or becoming a civil party, as the case may be, without the limitations indicated by the Code of Criminal Procedures and the Code of Military Justice for the action of the civil party, in the investigation stage, may restrict their work of caution and defense of the rights and interests of the State. For this purpose, they may be informed of any diligence and intervene in them.

• Require the assistance of the public force through the public authority for the best performance of its function

2. Judicial Performance of Public Prosecutors

As mentioned before at work before at work, the Public Prosecutors are in charge of common or special judicial, civil or criminal matters of any State body.

In the event that it is a Criminal process, where the State is the denounced, the Procurator must be constituted as a Civil Party, without the restrictions established by the Code of Criminal Procedures and the Code of Military Justice establish for the Civil Party in the Investigation stage. may restrict their work of caution and defense of the rights and interests of the State. That is, in this situation, where there are cases when the law admits the participation of the Civil Party, it could only be the injured party, his spouse, or his legal heirs constituted. In these cases, if the State is the aggrieved, the attorney can be constituted as a Civil party.

For the purpose of defending the rights and interests of the State, the attorneys may be informed of any diligence and intervene in it.

All claims against the State must be filed before the Judge of the First Civil Instance of the respective Judicial District, as indicated in subsection 4) of the Organic Law of the Judicial Power, and the 7th Complementary Provision of the Civil Procedure Code, with this Provision Complementary, the privileges in procedural matters granted by Decree Law 17537 to the procedural actions of Public Prosecutors were abolished.

In cases where the State wishes to sue and / or file a complaint against a third party, it is necessary that an authoritative Ministerial Resolution be previously issued.

Regarding the precautionary measures that are required, the Public Prosecutors, without the need for a Ministerial Resolution, on their own initiative and in charge of accounting for the purposes of issuing the relevant Ministerial Resolution. They may request that precautionary measures be issued, the necessary preparatory proceedings be decreed and processed to defend or promote the rights of the State.

This participation in trial must include all instances of ordinary and exclusive jurisdiction.

In the event that the State is a defendant accused party, the Procurators are the only ones who may give a confession in court on behalf of the State and may also agree to the claim, withdraw or compromise the trials, only with the issuance of the authoritative Ministerial Resolution in the last three cases.

When the State is the plaintiff, and the defense would have been the responsibility of the Prosecutor, the latter, either a Public Prosecutor and in the second instance Provincial Prosecutor, must institute the Prosecutor in defense, even though they may continue to intervene directly when they consider it so. In addition, it is obliged to rule in all instances, in litigation where the State is a party and to send the Public Prosecutor a copy of this opinion to speed up and facilitate its functional performance.

The notifications to the State in trial will be made to the respective Public Prosecutor, in his corresponding office, within official hours.

The Actions of Constitutional Guarantees, where the defendant is the State, such as Habeas Corpus, Unconstitutionality, Popular Action, the representative in charge will be the Public Prosecutor. In cases of Habeas Corpus whose appeals are presented before the Civil Chambers of the Superior Court, this body will officiate within 8 days of disappointment to the Attorney General of the Republic who is in charge of the affairs of the Ministry or respective body with the purpose to take cognizance of the case and intervene on behalf of the State.

In cases where the Constitution or the Law is violated or when General Resolutions and Decrees issued by the Executive Power, Regional and Local Governments are contravened, the power to claim or challenge through Popular Action is established. This is exercised before the Supreme Court, which is transferred to the Attorney General of the Republic, for a non-extendable term of 5 days. Once the Prosecutor knows the process and with the oldest Administrative Hearing from the Prosecutor, the claim is resolved in a Full Chamber agreement within 8 days, previously hearing the parties in a Public Hearing.

3. Exemption from Judicial Payments and other benefits

The exemption of judicial expenses to the State is a Privilege that is granted based on Article 47 of the Constitution which is widely accepted in specialized literature, among other reasons, because it is the State itself that finances the existence of the Judicial Power.

Recently, through Law No. 26599 of April 24, 1996, Article 648 of the Civil Procedure Code was replaced and it is established that State assets are unattachable.

In addition, it is added that the judicial or administrative resolutions, consented or enforceable, that provide for the payment of obligations by the State, will only be attended with the previously budgeted items of the sector to which they correspond. That is to say that from now on the lawsuits that are won against the State may not be the object of precautionary measures to real estate that belongs to it; even less request its auction once the process has been consented. The litigant who is favored in the process must be content with managing before the Ministry of Economy and Finance to include the compensation amount in the budget of the sector, as is known, it is jointly approved once a year. That is, if a process was won, for example in January of a certain year,the holder of the benefited right will have to wait until January of next year, to be able to enforce the judicial resolution that favored him. Not counting the bureaucratic paperwork that this entails.

On the other hand, in accordance with the provisions of subsection 4) of article 49 of the Organic Law of the Judicial Power and the 7th Complementary Provision of the Civil Procedure Code, the Civil First Instance Judge of the respective Judicial District, is competent to know the privileges in procedural matters, thus modifying what Decree Law 17537 has provided, which indicated that all claims against the State should be filed in the capital of the Republic.

4. Intervention of the Public Ministry

The Public Ministry is the autonomous body whose main functions are the defense of legality, citizen rights and public interests (LO of the MP - Legislative Decree No. 52, art. 1).

The declaration of states of emergency or of siege, in all or in part of the national territory, does not interrupt the activity of the Public Ministry or the right of citizens to appeal or access it personally, except for constitutional rights suspended as long as this situation is maintained (art. 8).

For the proper fulfillment of their functions and attributions, the Public Prosecutor and the Prosecutors in general exercise the actions or resources and act the evidence that the administrative and judicial legislation admit (art. 3); and in the event of deficiencies in our legal system, the Public Ministry in the exercise of its powers must take into consideration the general principles of law and preferably those that inspire Peruvian law (Constitution of 1979, art. 233 inc. 6, Constitution of 1993, arts. 158 to 160; LO of the MP art. 4).

Prosecutors are not objectionable, however they must excuse themselves, under responsibility, from intervening in an administrative or judicial process in which their spouse, relatives in a straight line or within the fourth degree of consanguinity or second of affinity, directly or indirectly have an interest or have it, or by adoption, or their compadres or godchildren or their attorney-in-fact (arts. 19 and 20 letter c)

The Supreme Prosecutor in contentious-administrative matters is concerned with issuing an opinion before the fiscal resolution in said processes (art. 86 inc. 1). The law that regulates the exercise of this innovative action must specify other points (Constitution, art. 240).

When the State is denounced before judges other than the Capital of the Republic, the Attorneys are substituted in the defense by the Superior Prosecutors in second instance (Art. 17; LO of the MP, Art. 36). Both parties have obligations to provide reports on the status of the cases (art. 217).

The Executive Power can also appoint lawyers temporarily in charge of the defense of the interests of the State, in exceptional cases (Art. 17); this situation falling within the discretionary sphere.

By the way, state agencies are obliged to give preferential and immediate attention to all requests made by the Procurators or those who take their place (Art. 36); comply with the judicial mandate to issue reports or submit administrative documents and / or actions (art. 36). It must always be remembered that the proceedings in process can only be exceptionally requested ex officio, by means of a well-founded resolution and under the responsibility of the petitioner, (LO of PJ 14650, art. 24, letter b).

In the Public Ministry, a Special Prosecutor's Office was created in charge of the Ombudsman's Office and Human Rights (Constitution, Art. 16, 8, 12, 67, 69 and 70; Law No. 25037, modifying the text of numeral 112) (487). Today the Ombudsman is the holder of these august and everlasting functions (Organic Law of the Ombudsman's Office No. 26520, Art. 1, 5, 9, 10 ′ 15, 16, 23, 25, 28, 29 and 31).

5. Deadlines for filing the claim

This is a matter to be considered integral and as a priority in the regulatory complex of the administrative or contentious-administrative process. The procedural normativity does not consider it this way, so that the solutions result casuistically.

Once the municipal administrative route has been exhausted, the judicial action proceeds within sixty (calendar) days from the date of notification of the resolution that ended the instance. Notwithstanding the foregoing, there is a popular action before the Judicial Power against ordinances, agreements, decrees and resolutions contrary to the Constitution and the laws (LO de M.N9 23853, arts. 109 to 114, 122, 123 and 124 inc. 3).

Comptroller actions may be contradicted within six months from the date of notification issued by the Comptroller General (Regulation of Law-DS N9172-CG, of 7-3-1972, art. 109). The text speaks of the pecuniary liability, so that if the ruling did not refer to economic content, the lawsuit would not operate or, at least, we would not know for sure what period we enjoy to present ourselves to the jurisdictional route, since in order to initiate the action previously, it would be necessary to deposit the full to which it amounts to the declared responsibility or to present sufficient guarantee (Art. 110). But judicial jurisprudence has tempered the requirement, establishing that all liability - and not only pecuniary - may be the object of contradiction (Supreme Example of 26.6.1978-4 AV First Chamber) (488).

The resolutions of the Fiscal Court can be questioned by means of a review appeal before the Supreme Court within thirty (useful) days from the date of certified receipt (Legislative Decree 187. art. 1). The Second Civil Chamber is the competent one (Agreement of the Full Chamber of 7.1.1982) and those of the Customs Court may be through the appeal for review before the Supreme Court, which must resolve it in fifteen days (useful (Decree Law NQ 2115, Art. 3).

For actions within the jurisdiction of the National Civil Service Court, it is 90 days, counted from the date of notification of the administrative resolution issued in the last instance (DS N2 37-9b-TR. Of 8.6.1990, art. 2). The contentious-administrative action is brought before the Labor Court of Lima (Article 1), innovating the legislation in this sense, since before it was the Court of First Instance in the civil court of Lima.

The claim will contain the established requirements (CPC Art. 306), adding the following instruments (Art. 4):

a) certified copy of the resolutions issued in all instances in the administrative procedure to which the action refers;

b) certified proof of the date on which the notification of the final decision object of the contradiction was made;

c) proof of payment of court fees corresponding to ordinary lawsuits (requirement only applicable to the employer).

The demand must be made known to the Senior Civil Prosecutor on duty (LO of the MP. D. Leg. Ng 52, art. 89, inc. 8). having to give a timely ruling (DS N2 37-90- TR, art. 8).

The Court in question issues a resolution, which could be appealed to the Supreme Court of the Republic within five days of notification (art. 9).

For the generality of the cases, this is not subject to the sieve of the indicated bodies, it is necessary to resort -on a supplementary route- to the similarity of cases of the Judicial Power: usually 30 days, extendable up to 60 days in total (LO of the PJ, Dl Nv 14605, arts. 125 and 159). Today it is established by law Nv 26111, arts. 98, 99 and 100.

1. At ten years of age, the personal action, the real action, the one that arises from an execution and the nullity of the legal act;

2. After seven years, the action for damages and losses derived for the parties from the violation of a simulated act;

3. After three years, the action for the payment of remuneration for services rendered as a result of non-employment relationship; and

4. After two years, the action for annulment, the revocation action, the one that comes from alimony, the compensation action for extra-contractual liability and the corresponding one against the incapacitated representatives derived from the exercise of the position.

6. General organizational structure of the attorney general's offices

For the development of its functions, the Public Prosecutor's Office is made up of the following organizations, for example, the Prosecutor's Office of the Ministry of Energy and Mines is made up of the following people, as well as all other prosecutors:

Public Attorney Mr. Francisco J. Vasquez de Rivero

Assistant Attorney Mr. Octavio Rodriguez Velis Gadea.

Lawyer Ms María Valdivia Urday

Administrative Aspects Mr. José Diaz Valenzuela

Judicial Manager Mr. José Rioja Ugaz.

7. Anti-Corruption Offices

The Ministry of Justice (Minjus) established decentralized anti-corruption public prosecutors, with the purpose of defending the interests of the State in processes related to corruption cases committed by public officials in activity or not.

These entities will have domicile in the headquarters of the judicial districts and will depend on the presidency of the State Judicial Defense Council. In addition, they will be in charge of a decentralized public prosecutor, who will have the level of deputy prosecutor, in accordance with Supreme Decree No. 038-2001-JUS, published in the special Legal Norms bulletin.

The objective is to represent and defend the rights and interests of the State in judicial processes initiated and to begin in the jurisdictional bodies of the designated judicial district, for matters related to the fight against corruption in the public administration.

The creation of these agencies responds to the delicate situation that exists with respect to the processes related to corruption cases, to the detriment of the interests and rights of the State.

Consequently, it is necessary to create these bodies that allow a better exercise of the defense and representation of the State, with the direct exercise of the function or in support of the work of the permanent public prosecutors, within the jurisdiction of the judicial districts to the Lima, a spokesman for the Minjus specified.

At present, the permanent public prosecutors have their headquarters in the capital of the Republic. For this reason, the attention to the judicial processes initiated in the jurisdictional bodies located in judicial districts other than Lima, is subject to the support provided by lawyers from the public agencies settled in the same locations, which does not allow an adequate exercise of the function.

Conclusions

• Public Prosecutors are independent in the exercise of their functions, which they will carry out according to their own criteria and in the way they deem more established by law, using the necessary legal resources.

• The intervention of Public Prosecutors is at the national level, before all judicial, administrative and arbitration instances, in which the rights or interests of the State are discussed.

• To sue and / or file complaints on behalf of the State, the Public Prosecutors require the prior issuance of the Ministerial Resolution or similar level, which expressly authorizes it to initiate actions.

• In all processes or procedures, notification to the State is made through the corresponding Public Prosecutor.

• The State, in accordance with the provisions of Article 47 of our Constitution and other laws in force, is exempt from paying legal expenses (fees, notification certificates and others).

• The Public Ministry is obliged to rule in all instances, in the processes in which the State is a party and the Prosecutors send a copy of their opinions to the Public Prosecutors.

• Public Prosecutors have the category of Members of the Superior Court of Lima and of Superior Prosecutors.

• The State is exempt from paying legal expenses