Full transcript
0:00Yes , it is visible , right ?
0:01Yes , it is visible .
0:03Perfect . The object of proof in money
0:07laundering , among other things , I must
0:09say , because the object of proof in the
0:12processes does not only extend to the
0:14accusation , but also to the eventual
0:16determination of the civil object and
0:19also eventually to the delimitation of
0:21the penal dosage , right ? To the
0:24determination of the penalty . But this
0:26is central . The object of proof is also
0:30integrated by the object of accusation ,
0:33and for the structure of the accusation
0:37for money laundering it is essential to
0:40have clarity in the structure of the
0:43crime provided for in the special
0:46criminal law , Legislative Decree 1106
0:49with its reforms , and also , of course ,
0:53in Law 3424 , which establishes the
0:58autonomous responsibility of the legal
1:00person and regulates the rules of
1:02accusation in relation to the so-called
1:05corporate crime of money laundering .
1:08But in addition to the criminal
1:10regulation , right ? The structure of the
1:13crime of money laundering , committed by
1:16either natural or legal persons , is
1:18also subject to a development of case
1:20law which is legally binding . I am
1:23referring to plenary cassation ruling
1:251217 , specifically in the third of its
1:31agreements , agreement C , as well as
1:34legal basis 12 and legal basis 21. All
1:38of them must clearly be interpreted ,
1:42right ? In light of what was resolved ,
1:45or rather , what was agreed in this
1:47plenary cassation ruling , which is
1:49again agreement C. With all of this , we
1:52can establish that the subject of the
1:54imputation is the delimitation of the
1:57intervening subjects . That is quite
1:59clear . Natural persons who do not act
2:02in business contexts . There cannot be
2:05money laundering , for example , through
2:07the transportation of money of criminal
2:09origin carried out by a person , a
2:10transporter or money smuggler . It is
2:12not a natural person in a business
2:14context . Or the intervening subject may
2:17also be someone acting as a
2:19representative , management or
2:20administrative body of a company , right
2:23? For example , management adopting the
2:27improper policy of using the legal
2:30entity's accounts to receive and / or
2:33transfer criminal funds , whether or not
2:38benefiting the legal entity . If this is
2:41the case , we are faced with a scenario
2:42of an intervening subject acting in a
2:44business context . It is money
2:46laundering , an expression of corporate
2:49crime , but it may also be a third level
2:52in the delimitation of subjects and
2:54interveners that the legal entity
2:57itself is autonomously responsible for
2:59the criminal act of money laundering ,
3:02right ? For example , when , as often
3:06happens in our country , companies that ,
3:08uh , materially have the status of
3:11subjects required to detect and report
3:13suspicious transactions , that is , to
3:16implement an SPLA , such as real estate
3:19companies , despite doing so in material
3:21terms , many of these have not even
3:24registered with the SBS and , even in
3:26this situation of omnipotence , continue
3:29with their business activity ; for
3:33example , building or selling apartments
3:36in a scenario where the opportunity
3:38arises , right ? In the case where a
3:41client decides to acquire a property by
3:46paying , for example , the down payment
3:48or the balance with criminal funds , to
3:50the extent that this company , which is
3:52materially an obligated entity , but is
3:54not registered with the SBS , as is very
3:56common in the country , right ? And that
4:01is to say , it does not have a model for
4:03preventing operations suspected of
4:06being laundered , or strictly speaking ,
4:09an accusation could be structured
4:11against the legal entity itself ,
4:13against the real estate agency itself ,
4:16for being structured in a defective
4:19manner in carrying out its business
4:21activity , which implied , right ?,
4:23mandatory implementation of prevention
4:26models , uh , anti-money laundering of
4:29the legislation of the financial system
4:31. That is not voluntary compliance , it
4:34is mandatory compliance and this is
4:36again very common if the requirements
4:38of Law 3424 are also met , right ? That
4:41it involves , for example , a criminal
4:43act carried out on behalf of the
4:45company , for example , the signing of a
4:47contract for the sale of an apartment
4:49without major anti-money laundering
4:51controls . Secondly , that money
4:57laundering behavior has been carried
4:59out , for example , in terms of real
5:01estate transfer , right ? And mediating a
5:06payment with criminal funds , with
5:08contaminated funds . Then , we could be
5:11facing the configuration of a corporate
5:14crime to the extent that this benefits
5:16the company and it involves an act of
5:18representation . So , we are also facing
5:22a component that integrates the object
5:24of imputation , which in turn structures
5:26the object of proof . In turn , in turn ,
5:30according to the plenary cassation
5:34ruling 1217 , they also form part of the
5:38object of imputation , right ? the
5:45determination of criminal funds , the
5:47provocation of criminal funds from
5:49previous generic criminal activities ,
5:51says the plenary cassation ruling , but
5:54previous criminal activities after all ,
5:56as we will now see , even the plenary
5:59cassation ruling establishes that there
6:01must be a criminal wrong , right ? Also ,
6:06in addition to these criminal funds ,
6:08typical behaviors form part of the
6:10object of imputation in our country .
6:13There are 15 typical verbs that
6:15structure the legal type of money
6:17laundering , right ? Any of these could
6:19give rise to the configuration of this
6:21crime . It is an alternative criminal
6:23type , one of 15 is enough . Undoubtedly
6:26the subjective imputation of intent ,
6:28only possible , intent , direct intent or
6:32eventual intent . And in some scenarios
6:36the subjective element of the wrong , I
6:38refer to article one , the acts of
6:40conversion and transfer , and I refer to
6:42article three of the special criminal
6:44law , the acts of transporting or moving
6:47cash . Since this subjective element of
6:51the wrong is not required in the cases
6:54of article 2 , concealment and
6:57possession . This subjective element is
7:00not only the performance of the
7:02economic act , right ? Of the conversion ,
7:06transfer or transport , but that they
7:09are directed , right ?, towards a specific
7:12objective . The acquisition of real
7:17estate is not enough , nor is the
7:19acquisition of a vehicle or the
7:21transport of money , but this must be
7:23done with the purpose of avoiding the
7:25identification of the criminal origin
7:27of the asset or its seizure or
7:29confiscation . With this , with this the
7:33object of imputation is established ,
7:35right ? Well , both the Public
7:39Prosecutor's Office and the defense
7:42will have to carry out acts of inquiry ,
7:48of investigation aimed at obtaining
7:50elements of conviction that support
7:53each of these components . Obviously in
7:58a context of progressiveness in the
8:00delimitation of this procedural object .
8:05It will be different , right ?, when faced
8:08with preliminary proceedings based on a
8:10simple initial suspicion , where
8:13naturally the defense should not , and I
8:16say , should not in hypothetical terms ,
8:18should not , uh , start from the sole
8:21perspective , often mistaken , that since
8:24the Public Prosecutor's Office has the
8:26burden of proving the facts
8:28constituting the crime , it is better to
8:31omit , it is better not to act , because
8:34the burden of proof lies with the
8:36Public Prosecutor's Office . Of course ,
8:37that is one interpretation , right ? But
8:41in strategic terms it is undoubtedly
8:44essential that the defense be able to
8:47exercise a proactive investigative
8:50action - not mandatory , but desirable , to
8:54the extent possible - as a dynamic burden
8:57of proof . It is not mandatory , but it
9:02is desirable and in strategic terms it
9:04is fundamental . For example , presenting
9:08all the economic information in the
9:10economic period that the Public
9:12Prosecutor's Office has delimited in
9:14order to establish an assessment that
9:16the person under investigation did have
9:18sufficient lawful funds to explain
9:20their economic situation in said period
9:22, or for example , that they had
9:24sufficient lawful businesses or
9:26productive activities , or for example ,
9:28that they had sufficient supporting
9:30financial resources to explain their
9:32financial situation , their acquisitions
9:35and others , right ? As well as , of
9:39course , directing the defense's
9:41activity to obtain evidence regarding
9:44the absence of criminal activities that
9:47produced criminal funds , right ? Or
9:50investigative acts aimed at explaining ,
9:56right ?, the legitimate nature and
9:58traceability of their economic
10:00operations . Therefore , a first line of
10:04opinion that I propose is that even
10:06when the Public Prosecutor's Office has
10:09the burden of proof , it is nevertheless
10:11strategically desirable for the defense
10:14to assume a proactive position in order
10:17to discredit the components that
10:19structure the object of the accusation .
10:23For example , the absence of criminal
10:25funds , for example , the defendant's
10:27non-involvement in the subject of the
10:30investigation , thus discrediting the
10:32configuration of this typical element
10:34of the subjects involved or explaining
10:36the legality of the operations ,
10:38discrediting the configuration of this
10:40other typical element which is the
10:42criminal conduct , the typical conduct ,
10:44as in the other cases as well , right ?
10:49Something central that we are going to
10:51identify and that we will then use with
10:53respect to the expert opinion is that
10:55the patrimonial imbalance is not part
10:57of the object of the accusation and
10:59therefore is not strictly the object of
11:01the configuration of the crime . The
11:05patrimonial imbalance is not a
11:07structural element of the criminal type
11:09of money laundering in any of its 15
11:11forms , unlike other types of similar
11:13criminal subsequence , right ? Such as ,
11:17for example , the illicit enrichment of
11:19officials , which in this country is
11:21only punishable in the area of
11:22officials , unlike legislation such as
11:24Colombia , where it is also punishable
11:26in relation to individuals , right ? And
11:34since it is not the subject of the
11:35criminal offense , it does not
11:37constitute a subject of proof . I am
11:40referring to the imbalance in assets .
11:43This , however , can be seen in these
11:45other criminal offenses such as illicit
11:47enrichment . We can separate it from the
11:50typical element , the abusive exercise
11:52of the position of the public official
11:54that allows that growth , that
11:56continuous improvement in assets during
11:58the abusive exercise of the position .
12:02Of course , this increase in assets as a
12:05typical element gives rise to an object
12:08of proof in said crime , the means
12:10conducive to accrediting this sustained
12:13increase in assets . No doubt , it could
12:17be the expert report , right ? An expert
12:20opinion that establishes the imbalance ,
12:21an accounting expert opinion , for
12:22example , that establishes the imbalance
12:24of the official , right ? This is not ,
12:27however , as is visible here , part of
12:29the structure of the criminal offense
12:31of money laundering ; and then we will
12:33see what role , therefore , accounting ,
12:35or economic , or value , or other
12:37expertise must play in cases of money
12:39laundering , particularly due to the
12:41observation that I mentioned that
12:43imbalance is not a typical component ,
12:45right ? But well , it is also essential
12:50to exercise this proactive defensive
12:53activity , but also the investigative
12:56activity carried out proactively by the
12:59Public Prosecutor's Office , because
13:01each stage has its peculiarities , its
13:04deadlines , its requirements in terms of
13:07conviction , right ? The beginning of the
13:11preliminary investigation is based on
13:13the simple initial suspicion . The
13:16transfer of the case from the
13:17preliminary investigation to the
13:19preparatory investigation is not a
13:20merely formal matter based , for example
13:22, on compliance with the deadline ,
13:23right ? In other words , the Public
13:25Prosecutor's Office is not authorized
13:27to move the case from preliminary to
13:28preparatory for the simple reason that
13:30the deadline has expired and there are
13:32still pending proceedings , right ? The
13:35only legitimacy that can be claimed
13:38from a formalization order must be
13:41based on the fact that we are faced
13:44with probable cause of criminal
13:47activity by Avado and probable cause of
13:50the identification of the accused agent
13:53with respect to the act of Avado . The
13:57so-called revealing suspicion and for
14:00this the Public Ministry must carry out
14:02a series of investigative acts that we
14:04will now see , right ? In order to , if
14:10that is the fate of the case ,
14:12eventually request the dismissal if
14:16this standard of proof of sufficient
14:19suspicion is not reached . There is
14:24suspicion , there are elements of
14:26conviction , but they are not sufficient
14:29to require the prosecution of someone ,
14:32right ? Or it may be that , on the
14:35contrary , there are , uh , with the
14:38evidence from the investigation already
14:40in its preparatory phase , elements of
14:42conviction that support the
14:44configuration of all the elements of
14:46the accusation , of all the elements of
14:49the crime , which , well , will be the
14:51reference object of the acts of
14:53investigation up to that phase and ,
14:55then , in its accusatory proposal , the
14:58elements on which the acts of proof in
15:00the trial will fall , because an
15:03accusation is structured to go to trial
15:06, which does not mean that every
15:08accusation must intrinsically go to
15:11oral trial . That is clear . We have the
15:14intermediate stage as an instance of
15:16control of the same , right ?, of the
15:17accusation . If this status of
15:21conviction is reached , that of
15:23sufficient suspicion , we will be facing
15:26an accusation that has been duly
15:28formulated , right ? As stated in the
15:342017 plenary cassation ruling in its
15:38legal basis 19 , it is in effect not
15:41necessary to identify the specific
15:44prior criminal behaviors that produced
15:47the criminal profits . In other words ,
15:52where they were carried out , in what
15:54specific place , who specifically
15:55participated , and / or a legal
15:57qualification , and with all of this ,
15:59the criminal funds that are the subject
16:01of the laundering operations are
16:03produced , right ? Money laundering is an
16:07autonomous crime , but despite doing so ,
16:10it requires something from the prior
16:13criminal act , the criminal funds . And
16:18to establish the nature that these
16:21funds have a criminal basis , correctly ,
16:25I believe , the plenary cassation ruling
16:29requires proof of prior criminal
16:32activity , right ? In general terms , but
16:36of a criminal wrong , as we see it here ,
16:39right ? In other words , the criminal
16:42activity , the prior criminal wrong ,
16:44must be proven . It is not a subject
16:48that the prosecuting body can avoid
16:50paying attention to , because if it does
16:53not , it will take an elusive
16:58perspective , right ? This component is
17:03integrated into the object of proof . So
17:05, we are going to have the pernicious
17:07problem that this accusation will not
17:10have the required solidity , with the
17:16required legitimacy and with it the
17:18probability of success of the case in
17:21an oral trial , meaning the conviction ,
17:23right ? This will explain , or rather
17:28will add to this , to this analysis that
17:30has already been officially carried out
17:33by the Comptroller's Office , sorry , by
17:35the Ombudsman's Office , assessing
17:37official information , right ?, from the
17:39Judicial Branch , from the Public
17:41Ministry , from the Financial
17:43Intelligence Unit , regarding the
17:48probability of success in cases of
17:50money laundering in Peru , that is to
17:52say , convictions for money laundering ,
17:54is frankly scarce and therefore
17:56alarming , right ? Alarming because it
18:01was probably always a case of false
18:03positives , right ? And all that that
18:07implies for a defendant in that false
18:09positive condition . But it is also
18:12alarming in terms of the fact that
18:14importance has probably been given to
18:16what should not have been , generating a
18:17burden and loss of resources where it
18:19should not have been . But leaving aside
18:24cases where we were facing authentic
18:26scenarios of assets causing false
18:28negatives , right ? Acquitting those who
18:31should not have been . But that is
18:35already an administrative and
18:37institutional policy problem that we
18:40see is gradually improving in the area
18:44of the Public Ministry . What does the
18:48prosecution have to do ? What
18:51investigative acts must it carry out in
18:53order to identify these elements of
18:55conviction that support the object of
18:58the accusation and then the procedural
19:00object itself ? And in turn , what
19:04actions must the defense take to help ,
19:07not , clearly define , for example , the
19:11defendant's non-involvement in the
19:13process or the investigation or
19:16discredit the elements constituting the
19:19accusation of money laundering , right ?
19:25Again , a logic of proactivity , of
19:27proactive defense and not one that sits
19:29back under a logic based solely on the
19:31fact that the Public Prosecutor's
19:33Office has the burden of proof , because
19:35of course that is correct , but perhaps
19:38in strategic terms it is not the most
19:40convenient . Naturally , the Public
19:44Prosecutor's Office must request
19:46information on the economic situation
19:49of the natural and or legal persons who
19:51are the objects of the investigation ,
19:53as well as their circle of trust , right
19:56? Economic information , for example ,
20:00regarding legal persons , their economic
20:02growth figures , their background ,
20:04whether they eventually changed their
20:06corporate name , what was the social
20:08activity they carried out previously ,
20:10what is their current area of activity ,
20:12right ? Regarding your financial
20:16information , you may require financial
20:18statements , account statements ,
20:20financial transaction reports , customer
20:22records , this is information that the
20:24Public Prosecutor's Office may require ,
20:27as well as commercial information ,
20:29right ? Contracts entered into locally
20:34or internationally , stock market
20:36participation rates in terms of
20:38business activity , right ? The documents
20:43with which the company was structured ,
20:46its corporate constitution , the stock
20:49registration book , right ? The minutes ,
20:54for example , of the General
20:56Shareholders ' Meeting in the case of
20:59corporations , where corporate decisions
21:02were made to increase capital , for
21:05example , to produce , in short ,
21:07investment decisions , purchases , sales ,
21:10among others . A fundamental component
21:15of the investigation is to obtain the
21:17stock registration book . Why ? In Peru ,
21:21the most commonly used corporate
21:24instrument is the closed corporation .
21:29SACs are the most commonly used type of
21:32legal entities in Peru , along with
21:35individual limited liability companies ,
21:38right ? However , the peculiarity of this
21:43corporate vehicle , the closed
21:46corporation , lies in its own legal
21:48nature of preserving the anonymity of
21:52its partners , except in the case of the
21:55founding partners . It is very important
22:00to define this because something that
22:02the Public Prosecutor's Office tends to
22:05do wrong is limit its attention
22:07regarding possible intervening subjects
22:09of the company under investigation to
22:12those people who appear in the registry
22:14entries in the literal copy of the
22:17Company's Constitution , that is ,
22:19information that is publicly accessible
22:21in registries . When it comes to
22:26partners , we are going to see very
22:29limited information based solely on the
22:32founding partners . And this is very
22:37problematic because it is very frequent
22:40, and I say this in terms of defense . I
22:44have a significant number of clients
22:47who are corporate lawyers , who are
22:49involved in money laundering cases and
22:52others for the simple reason of having
22:54incorporated companies , as it is
22:57standard corporate practice . It is a
23:01practice of corporate offices ,
23:04absolutely legitimate , but also
23:06completely reasonable . Investors do not
23:10create a company , open a bank account ,
23:13carry out all the incorporation acts at
23:16a notary's office , file any
23:19observations that may arise in public
23:22registries to recognize its
23:24incorporation , right ? And finally ,
23:27right ? The investor performs a very
23:30simple act , which is to buy the shares .
23:33And who does he buy them from ? From the
23:36corporate lawyers who structured the
23:38company , with so many founding partners
23:40, but that subsequent act , right ?, by
23:42means of which the founding partners ,
23:45mainly corporate lawyers , transfer
23:47their shares in favor of the investor ,
23:49right ? Clearly freeing them from the
23:54high transaction costs and time that
23:56would be involved in them incorporating
23:59the company , finding a name , etc. , etc.
24:01, we will not find that act of transfer
24:04of shares , we will not find it in
24:06public registries , we will find it in
24:08the share registration book and in fact
24:11there we will also find the subsequent
24:13transfers of shareholding , right ? And
24:17we could even detect that the owners in
24:20a certain context of the company are
24:23not even natural persons , they could be
24:25legal entities . Furthermore , we could
24:29even detect in the stock registration
24:32book that the current owners of the
24:35company are legal entities that are not
24:38even resident in Peru . This is also a
24:42way , isn't it , of conducting business
24:45affairs on the part of investors who
24:47are currently operating from abroad .
24:50And that per se is not criminal
24:52behavior . Per se it does not constitute
24:56an act of money laundering or of any
24:58other kind . It is simply the management
25:02of companies through this method ,
25:04because in Peru , as also in foreign
25:07business experience , right ? , legal
25:11entities can also be partners of other
25:13legal entities . Furthermore , legal
25:16entities can also manage other legal
25:18entities . The problem is that the
25:23business dynamics must be known in
25:26order to carry out more efficient acts
25:29of investigation , but also to correctly
25:32interpret the contrast of the facts
25:35subject to investigation with the
25:37development of corporate activity . This
25:43does not usually coincide , and rather
25:45something very frequent in the tax
25:48offices of Money Laundering and others
25:50is to have as accused parties , right ?,
25:53the founding partners of the company ,
25:56as well as bank representatives ; for
25:58example , the manager who appears in the
26:01SUNARP file , but not to enter into the
26:06core of the real management of a
26:08company in the context under
26:10investigation , because we probably
26:13think : a company created in the year
26:152000 , the acts of investigation or the
26:17hypothesis of alleged money laundering
26:20is from the year 2010. And the act of
26:22investigation regarding who the
26:24partners would be in 2010 , we are
26:26always going to see the same , which are
26:29the founding partners , when strictly
26:31speaking , only in the book of shares
26:35registration , we can identify who were
26:37really the owners of the company in the
26:39context of the facts . This is also part
26:45of the defense that can be exercised in
26:48favor of those who will permanently
26:50appear in the public records as
26:53corporate lawyers or not necessarily
26:55corporate lawyers . I also know of cases
27:00of administrators , accountants , and
27:02managers who limited themselves to the
27:05founding act , which then produced the
27:08transfer of shares . It is a defensive
27:14action that will allow the defendant's
27:18non-involvement in the investigation to
27:21be proven . An agency based , of course ,
27:26on the evidentiary proposal regarding
27:29the presentation of the share
27:31registration book . One question could
27:34be , but what happens if the Public
27:36Prosecutor's Office fails to do so ?
27:37Right ? What happens if it requires
27:38information and fails to do so ? Well ,
27:41the company could also have a policy of
27:44simply saying we will not cooperate .
27:48This is the exercise of the right to
27:50corporate non-incrimination , also
27:52recognized by international courts . But
27:55we have a very important problem here ,
27:59because look , this type of economic ,
28:02financial , commercial , business
28:04information , I have selected it in this
28:08way because in Peru we have a
28:10peripheral crime , praised , right ?, that
28:14poses a risk to the corporation or to
28:17the person required to submit this type
28:20of information . Let me explain : when
28:24the Public Prosecutor's Office or the
28:27jurisdictional body issues an official
28:30request to the accused , natural person
28:32or legal entity , to submit economic ,
28:35financial , commercial , business
28:37information within a certain period of
28:40time and they do not do so , this
28:45failure to provide information is a
28:47breach of the duty to provide data for
28:50money laundering investigations , and it
28:53is important to know that in Peru this
28:55gives rise to a crime peripheral to
28:58money laundering . No , it is not money
29:01laundering , but it does occur in the
29:02context of money laundering cases . But
29:05in addition to being a crime provided
29:07for in the special criminal law on
29:09money laundering in Legislative Decree
29:121106 in its sixth article , right ? In
29:15addition to being a crime based on the
29:19breach of the duty to provide this type
29:22of information that we see here , it is
29:25a recent corporate crime . What do I
29:29mean ? It is part of the catalog of
29:33those new crimes that can be committed
29:36autonomously by the same legal entities
29:39since November 2023. In other words , it
29:42is part of the latest reform of Law
29:453424. So that negative position ,
29:48providing information , must be known ,
29:51right ? The defenders that it will cause
29:55the criminal risk , right ?, of
29:57intensification of the prosecution
30:00perspective of the Public Prosecutor's
30:02Office in a possible configuration of
30:05the related crime referred to in
30:07Article 6 of Legislative Decree 1106.
30:10Therefore , these supply duties must be
30:13fulfilled , right ? That perspective that
30:17it is the exercise of the right to
30:19corporate self-incrimination , right ?
30:23Delivering to the prosecution or the
30:25Judiciary this type of specific
30:27information that they require of us ,
30:29remembering that no fundamental right
30:31is absolute . It can also be restricted
30:35by the legislator and it has already
30:37been done . So , attention must be paid
30:40to the criminal risks that may arise
30:41from the omission . Or not only is the
30:45non-delivery or non-supply punished ,
30:47but also the provision of inaccurate
30:50information , right ? Or also , clearly ,
30:53the provision of false information .
30:57Additionally , the Public Prosecutor's
30:59Office , but also the defense , with the
31:02purpose of first structuring the
31:04hypothesis about the criminal source of
31:07the assets and second structuring the
31:09defensive hypothesis that there is no
31:12criminal origin in the assets , can
31:14direct attention to these spaces , right
31:17?, of information sources on background
31:19information . In the case it is clear
31:23that the Public Prosecutor's Office can
31:25send letters to the various
31:26coordinations of the prosecutors '
31:28offices , right ? For example , the
31:30coordination of the National Superior
31:32Prosecutor's Office for Money
31:33Laundering to the national coordination
31:35of the Superior Prosecutor's Office for
31:36Asset Forfeiture , right ? To the
31:39National Coordination of Prosecutors '
31:42Offices , supra-provincial organized
31:45crime or specialized prosecutors '
31:47offices in organized crime , drug
31:50trafficking , tax crimes , crimes against
31:53intellectual property , customs , in
31:56short , investigative acts that will
31:58have the purpose of obtaining
32:01documentary evidence related to
32:03possible criminal records that could be
32:08committed , right ? Or ongoing
32:09investigations that the accused ,
32:12whether natural or legal person , or
32:14circle of trust , could have . We will
32:17examine the latter later because it can
32:20also be close to the so-called
32:22indication of a link to commit a crime .
32:26We will also eventually direct
32:28attention to Dirandro , Interpol , the
32:31UIF , requesting that they eventually
32:34prepare financial intelligence
32:37documents or documents in which they
32:40state whether the accused , natural or
32:43legal person , has positive records for
32:48suspicious transactions that could have
32:50been provided to the UIF by the various
32:51obligated subjects throughout Peru .
32:55Requisition Division , IMPE , central
32:58registry of convictions , right ?
33:00Registry of detainees . Obviously , in
33:04the case of the defendant's defense , if
33:12the defendant had criminal
33:14investigations , can they carry out
33:17their private investigation activity to
33:20produce exculpatory evidence related to
33:23the status of the criminal case that
33:26could have been pursued , for example ,
33:29by obtaining certified copies of the
33:32filing , or the dismissal , or the
33:34confirmation of the first or second ,
33:37right ? To discredit the perspective
33:39that the Public Prosecutor's Office
33:41could have that there is indeed
33:43evidence , right ? Something that is
33:45frequent in money laundering cases is
33:48that the Public Prosecutor's Office
33:50requests a record of investigations and
33:53if the defendant has had any , they will
33:56come up or some will appear . But there
33:59comes a problem , because for the Public
34:01Prosecutor's Office that record , that
34:03report tends to be sufficient evidence
34:05and there is no way around it regarding
34:08the fact that the typical element
34:10related to the criminal origin of the
34:12assets is accredited . And that is
34:14problematic , because it is possible
34:16that the cases indicated there have
34:21either no longer been processed , have
34:26been archived , or it is possible that
34:30they do not involve criminal acts that
34:33could give rise to criminal funds . Or
34:38it is also likely that when one
34:40analyzes the type of criminal act
34:42behind that record , the production of
34:45criminal profit was minimal , even if it
34:47is a conviction . Furthermore , the
34:51Public Prosecutor's Office could even
34:52obtain copies of that entire process ,
34:57including the sentences of conviction ,
34:59but the content of the sentence of
35:01conviction must also be examined . The
35:04structuring of the typical elements of
35:05money laundering is not based on mere
35:07formality . The defendant had a
35:09conviction 10 years ago , and that's it ;
35:11all his assets are contaminated and
35:12will continue to be in the future . He
35:14cannot start a business . This formal
35:17logic , which is also harmful to the
35:19development of a correct accusation and
35:22investigation , must address several
35:25issues . First , was the criminal act
35:30profitable ? Beyond the formal fact of
35:34the conviction , did it produce profit
35:36or not ? probably didn't produce it ,
35:39right ? In fact , I have cases of that
35:42order where we have shown that , beyond
35:44the fact that a possible conviction may
35:47have existed and the * non-menstrual *
35:49nature of the crime subject to
35:51conviction , since from a deep analysis
35:54of its content , the events could have
35:56occurred , for example , in one case , 10
35:59years before the economic period under
36:02investigation for money laundering ; 10
36:04years before . And the profitability
36:08produced was absolutely ridiculous , as
36:10to explain the financial and business
36:13situation achieved by this person who
36:16left public taxes , who negotiated a
36:18conviction to regain his freedom , but
36:21who progressively decided to become a
36:24company in Peru , right ? And by that I
36:28mean that we do not have a formal
36:31perspective of the configuration of the
36:35elements of the type or its proof . On
36:40the defense side , therefore , it will
36:44always be necessary to follow this
36:47logic of non-mandatory , but rather to
36:49promote defensive investigative actions
36:52with proactivity : the analysis of those
36:55decisions that may have been made
36:57regarding the previous criminal act ,
36:59delving into the type of matter , the
37:02type of sentence , and whether or not it
37:04was profitable . Clearly , this work is
37:11not to be carried out with efficiency ,
37:14nor with any proper utilization of the
37:16available time . because if the
37:19objective in the case of the defense is
37:21for the Public Prosecutor's Office to
37:24adopt a strategic decision to close the
37:26case , it will have to provide all the
37:28information in the short investigation
37:31period so that this strategic decision
37:33to close the case can be carried out .
37:37That is why it is desirable , although
37:40not mandatory , to exercise a dynamic
37:42burden of proof , right ? Regarding the
37:46establishment of evidence of imbalance ,
37:49which although it is not an element of
37:52the criminal type , nevertheless
37:54structures the so-called triple pillar
37:56of evidence , that evidentiary basis
37:59from which the eventual configuration
38:01of money laundering , its proof and with
38:04it the conviction could be inferred ,
38:06right ? Well , to find that evidence of
38:13this evidence , do not forget that all
38:15evidence must be proven with direct
38:17evidence , right ? And without
38:20controversy over the determination of
38:22the evidence so that all evidence
38:25proven with direct evidence one after
38:27the other can all point in a single
38:30direction , right ? So , to establish ,
38:34therefore , the evidence of imbalance
38:36and the evidence of absence of lawful
38:38business , the Public Prosecutor's
38:41Office must direct its attention to
38:43obtaining documentary information from
38:45all entities that handle data on the
38:47financial situation of natural or legal
38:50persons . I am not referring to the real
38:53estate property registry , the vehicle
38:55property registry by sending official
38:57letters to SUNATAR . The same applies to
39:00the registration of legal entities and ,
39:03eventually , to the determination of
39:05whether the natural person has
39:08exercised mandates , powers of attorney ,
39:10or business representation of companies
39:13, of course , to SUNAT so that it can
39:15report on whether the defendants in
39:18question have an RUC , for example , and
39:20since when they have been carrying out
39:23productive activities . The same applies
39:27to the eventual obtaining of
39:32information subject to tax
39:34confidentiality , right ? At the time ,
39:39through a jurisdictional decision ,
39:41through a fiscal request to lift the
39:43tax confidentiality . SUNA could also
39:47provide information on whether the
39:49taxpayer has been subject to tax audits
39:52, if no complaints have been made by
39:55SUN , possibly for tax crimes through
39:57reports determining criminal tax
40:00offenses , right ? Among other entities ,
40:05such as at the notarial level to find
40:07legal transactions in which the
40:09defendants have not carried out notary
40:11public acts , right ? Entering into
40:14contracts , purchases , sales , business
40:17incorporations , and others , right ? This
40:20is very important to highlight , right ?
40:25And since notaries are obligated
40:28subjects , it is very common that when
40:31the prosecution requests information
40:34about certain people from the notary's
40:37office , these people's data is
40:40safeguarded in the notary's office ,
40:43right ? As risk agents , and the
40:48operations that these people may carry
40:50out in the future . Many notaries '
40:53offices classify them as suspicious
40:54transactions for the simple reason that
40:56they are people on alert based on the
40:58fact that the prosecution requested
41:00information about them at some point ,
41:02right ? For example , I have a case where
41:06the prosecution obtained a financial
41:08intelligence report on suspicious
41:10transactions of this business client .
41:15Since it is confidential information ,
41:17right ? We had to wait to reveal the
41:20data to find out that it was a report
41:22of a suspicious transaction
41:24communicated by a notary's office whose
41:27alerts were raised when the Public
41:29Prosecutor's Office requested
41:31information about my client . But the
41:36suspicious transaction occurred when in
41:38the future , while the investigation was
41:41being carried out in parallel , when in
41:43the future my client intended to carry
41:45out a vehicle transfer , the act was
41:47carried out , but the notary , as a
41:49subject obliged to communicate ,
41:51reported it to the UIF , right ? That is
41:55what we found in our private
41:56investigation , right ? That is to say ,
42:03it is a suspicious transaction because
42:06it was carried out by our business
42:07client , but he did it after the search
42:10for information that the prosecutor's
42:12office carried out about that notary's
42:14office in transactions that my client
42:16had carried out , which at that time the
42:18answer was negative . And of course ,
42:22since when my client did not intend to
42:24carry out this transfer transaction and
42:27there was an alert about his name due
42:29to the previous order from the
42:30prosecutor's office , then the future
42:32transaction that he carried out at the
42:34notary's office led the notary to
42:36classify it as a suspicious transaction
42:38. With this , by providing information
42:42to the FIU , it is the duty of the
42:43obligated subject to report the
42:45suspicious transaction within 24 hours ,
42:47and then the Financial Intelligence
42:49Unit must preserve that data so that ,
42:50as happened in this case , the
42:52Prosecutor's Office , when requesting
42:54information from the FIU on whether my
42:56client reported suspicious transactions
42:57, obviously the FIU said yes , right ? It
43:01was a vicious circle , right ? Well , with
43:04a proactive investigation , it can
43:06discredit itself , right ? That also
43:10happens , for example , I am referring to
43:13the lifting of alerts in a much more
43:15pernicious way , a much more pernicious
43:18side effect when , for example , the
43:20Prosecutor's Office requires the
43:22lifting of bank secrecy , a fundamental
43:25act of investigation . Is that clear ? Is
43:27that clear ? And the judicial body ,
43:30inaudita parte , also grants it . In the
43:34separate Audit , it is clear that this
43:35occurs , right ?, with the controls that
43:37the jurisdictional body must carry out ,
43:39but the problem is not the performance
43:40of this essential act of investigation ,
43:42without a doubt , the problem lies in
43:44the destination . I am referring to the
43:47fact that , when the Superintendency of
43:52Banking and Insurance is first required
43:56to request the banks that supervise , uh
43:59, report on accounts , on eventual
44:02operations in said accounts of the
44:06accused , all the banks immediately
44:09raise their alerts . Immediately , and
44:13with this , a pernicious effect is
44:18caused in the investigations of money
44:20laundering , which is that , to varying
44:22degrees , due to internal protocols of
44:25each bank , we go to these following
44:27levels , right ? Or they call the client ,
44:30their bank client , to give explanations
44:33of why , uh , they are on alert . They are
44:38the ones who are , let's say , less
44:40sensitive to alerts , like others , and
44:43they simply do not want to grant an
44:46additional financial product again .
44:50That is to say , this client sees their
44:52possibility of having , for example , a
44:54new credit card or opening a new bank
44:56account limited by the one they already
44:58have . And then this pernicious effect
45:01can spread to other banking entities
45:03again , right ? They give you the check
45:07so that you can take the money from the
45:09account and go to another bank , causing
45:12informality , right ? This is a reality
45:15in our country . This important report
45:19from the Ombudsman's Office has
45:21established that it is advisable for
45:24all stakeholders to review additional
45:26acts of investigation . Well , for
45:29example , to look at the credit
45:31situation , the credit history of people
45:33. It could be that we are dealing with
45:35people who lack funds or credit
45:37capacity and who nevertheless , despite
45:39this , have visible , noticeable signs of
45:42wealth that they can even share on
45:44social networks , right ? The Public
45:49Prosecutor's Office will have to warn
45:51of this financial situation and
45:54eventually obtain information from
45:56Xifax that the accused may lack a
45:59credit record or favorable credit
46:02conditions . Obviously , it is essential
46:06to establish an expert opinion when
46:09appropriate . Not all cases of money
46:11laundering require an expert opinion .
46:14This is essential to understand , for
46:17example , in cases of money
46:19transportation , right ? — of criminal
46:22origin , which is the criminal offense
46:24in question : if during the preliminary
46:26investigation , despite the Public
46:27Prosecutor's Office suddenly ordering
46:29an expert opinion , the defense manages
46:35to prove the legal source of those
46:37assets , right ? And at the same time the
46:42Public Prosecutor's Office fails to
46:43prove the criminal source of those
46:45assets of the money transported . The
46:49criterion for determining when the case
46:52should be closed or when it should
46:55proceed to formalization does not lie
46:57in whether or not there is an expert
47:00opinion . In other words , the case can
47:04be closed even if there is no expert
47:06opinion establishing an imbalance . It
47:10is not subject to proof because it is
47:13not part of the structure of the crime ,
47:15the patrimonial imbalance . In that
47:19sense , it is not correct for some
47:22offices of the Public Prosecutor to say
47:25, " We do not have expertise , but we
47:27will achieve it in the next stage . See
47:31you there . " And this is not correct
47:34when , rather during the preliminary
47:37investigation , the defense obtained
47:39evidence that discredits the other
47:42components that structure the criminal
47:45offense of money laundering , because
47:47there may be a scenario of imbalance
47:50that is not explained in the generation
47:53of criminal funds that cause the
47:55imbalance . The patrimonial imbalance ,
47:58let us not forget , is not an element of
48:00the criminal offense of money
48:02laundering . And secondly , its
48:04verification , its proof may not give
48:07rise to money laundering either . It may
48:12be that we are facing another type of
48:14criminal activity , for example , tax
48:16fraud . Or it may not even be a criminal
48:21activity , as it is a tax offense , which
48:24would be the scenario of unjustified
48:27wealth gain , the penalty for which in
48:30the tax system is to classify it as
48:33fictitious income . The taxpayer who has
48:38not declared his or her income , not in
48:41full when he or she should have ,
48:44presents this situation of unjustified
48:47wealth gain and is detected by SUNAT .
48:52All of this increase , according to our
48:55tax legislation , is considered taxable
48:58income with a fictitious basis , that is
49:01clear , but taxable income after all and
49:04on which SUNAT will deploy all of its
49:07measures for the fulfillment of the
49:10obligation by the taxpayer who omitted
49:13the payment of taxes , right ? So , expert
49:17opinion is important , right ? In certain
49:21scenarios . Even transfer operations can
49:25be proven by the mere act of having
49:28occurred , for example , a transfer of
49:31funds . Why is there a need for an
49:38official expert opinion to establish
49:41proof of this fact ? None . If there is
49:45traceability of an operation based on
49:47criminal funds , an expert opinion is
49:49not necessary . What I mean is that an
49:51expert opinion is neither necessary nor
49:54necessary to formalize . The prosecution
49:58can dismiss the case without an expert
50:00opinion , but it is also not necessary
50:04for formalization , because the
50:07prosecution can formalize even in cases
50:09where there is no expert opinion . Be
50:13careful with this . Neither one nor the
50:16other . For the reason , once again , that
50:20the wealth imbalance does not
50:22constitute an integral part of the
50:24criminal offense in money laundering ,
50:26but it could be useful , however , it is
50:29clear , when there are scenarios of
50:31mixed assets ; that is , when the accused
50:33, whether a natural person or a legal
50:36person , in addition to having a
50:38legitimate economic situation ,
50:42contaminates that lawful wealth base
50:45with criminal funds through , for
50:48example , acts of acquisition , of legal
50:51titles , acquisition of vehicles ,
50:53execution of fictitious contracts to
50:56hide criminal funds , etc. In these
50:59scenarios , when there is a mix of
51:02legitimate assets with contaminated
51:05funds , with presumably criminal assets ,
51:08it is essential , in these limited
51:12scenarios , to establish an expert
51:15opinion that analyzes the documentary
51:18flow between the defendant's income and
51:21expenses , because the analysis , if it
51:25is established that expenses are
51:28greater than income , if there are more
51:31expenses than receipts , right ? That
51:35could lead to a scenario of patrimonial
51:38imbalance . Naturally , the defense will
51:43have the opportunity to also carry out
51:46an expert opinion on its part .
51:51Something that is also desirable in
51:53terms of strategy is that the defense ,
51:56having assumed a preliminary
51:58investigation case in its own private
52:01investigation , develops , as far as
52:04possible , an expert opinion on the
52:06traceability of operations , on the
52:09traceability of documents in order to
52:12explain the financial situation of the
52:14defendant . And with that , even when ,
52:19for example , an official expert is not
52:21appointed due to the poor logistics
52:23that exist in the country , that is a
52:25reality , the defense does not have to
52:31wait for an appointment to be made ,
52:32because the deadline may expire and the
52:34Public Prosecutor's Office may say : " We
52:36are going to the next stage because we
52:38have not yet appointed an expert , but
52:40since we are looking for an official
52:42expert opinion to be carried out , we
52:44will achieve it in the next stage
52:45anyway . " And that is problematic , right
52:48? Because the principle of community of
52:51evidence should not be understood ,
52:53right ? As exclusive to the oral trial ,
52:57right ? That is to say , that the
53:00evidence , the probative means
53:02incorporated into the trial by
53:04community of evidence are obtained from
53:07all parties and are removed from the
53:10agent who offered and presented it ,
53:12right ? From its admission , uh ,
53:15principle of acquisition , all parties
53:18can extract probative value from the
53:21evidence regardless of who offered it .
53:26The same must govern in the stage prior
53:28to the oral trial with its nuances . Is
53:30that clear ? Therefore , if a
53:33professional , a technician , has carried
53:35out an expert opinion on behalf of the
53:38defendant during the preliminary
53:40investigation and it has all the
53:41grounds , it is desirable and what the
53:44defense must promote is for the Public
53:46Prosecutor's Office to summon him / her
53:48at that stage so that this technician
53:50can explain the defendant's financial
53:52situation and , in doing so , help
53:54explain the financial situation from a
53:56technical perspective before the Public
53:59Prosecutor's Office . Before the Public
54:02Prosecutor , it is clear that this would
54:04allow for the adoption of a strategic
54:06and correct decision , would it not ? The
54:09idea of closing the case is therefore
54:11not , in my opinion , compatible with the
54:14duties of objectivity , and those
54:16existing fiscal decisions that do not
54:19value the expert opinion that you
54:21presented to me at this stage . I am
54:24still waiting for the appointment of
54:27the official experts . I've established
54:30this in the proceedings , so we move to
54:32the next stage because your expert
54:34report is biased , you paid for it , and
54:36it is entirely contaminated . That is a
54:39misleading logic , because in the end ,
54:41an expert witness is also subject to
54:44duties of truthfulness , right ? He has
54:47an oath and will not compromise his
54:49prestige or his technique by falsifying
54:52information , for example , of a
54:54technical nature , right ? But rather ,
54:58subject , of course , to the rules of
55:00adversarial proceedings , he could be
55:02examined and also clearly
55:04cross-examined , for example , by the
55:06other parties in the proceedings , by
55:08the same attorney general's office in
55:10the preliminary hearing , right ? And I
55:13believe that this is the desirable path
55:15. Otherwise , cases will always be
55:20pushed to all possible stages , and that
55:23largely explains the congestion in the
55:28system and the neglect of cases where
55:30attention should be given ; I am
55:32referring to cases where attention
55:34should be given simply because they
55:36generate procedural burden , right ?
55:39Other investigative acts , of course ,
55:42are measures limiting rights , searches ,
55:44raids , lifting of bank secrecy , tax
55:46confidentiality , secrecy of
55:48communications , right ? Well , there is
55:52also a supporting indication , although
55:55not constitutive , which is the
55:57so-called indication of poor
55:58justification . It's a corroborative
56:00hint , nothing more than that , right ?
56:03Based , for example , on explanations
56:04lacking financial logic that may be
56:06given by the investigated parties . It
56:09is one thing to exercise the right to
56:11remain silent , right ? Which may even be
56:13temporary , right ? That is to say , in
56:16this situation I am not going to
56:18testify because we are still producing
56:20the evidence to explain my financial
56:22situation . I am not clear on it now and
56:25I will request at the appropriate time ,
56:29after presenting my expert opinion , to
56:32be summoned so that I can answer the
56:35questions of the parties with better
56:38preparation . It is part of the right to
56:41have adequate means to prepare the
56:42defense . But also , the statement of an
56:45accused is not an act of proof , it is
56:47not an act of investigation , it is a
56:48means of defense , right ? Also , the
56:52indication of poor justification is
56:54presented , I was saying , not by the
56:56fact of exercising the right to remain
56:58silent , right ? but when a statement is
57:02made and the explanations that are
57:04given lack financial logic . And defense
57:10attorneys must be very careful about
57:12this , because the Public Prosecutor's
57:15Office could use inconsistent
57:17statements , lacking financial logic ,
57:19from the defendant , from the
57:21representatives of the legal entities
57:24accused , and structure them as evidence
57:26of poor justification , which again do
57:29not constitute the evidentiary basis of
57:31the charge , but are evidence of
57:34reinforcement , as Professor Buenos , who
57:37was professor Manuel Mirández Trampes
57:40during his lifetime , rightly points out
57:42in a work on money laundering and money
57:45laundering , right ? I close by saying ,
57:49and with this I conclude , that
57:52obtaining all this evidentiary basis ,
57:55all these documents , reports , decisions
57:58, statements , personal evidence , expert
58:02evidence , must serve to prove the
58:05so-called triple pillar of evidence ,
58:08right ? Recognized at a jurisprudential
58:15level , binding in our country as that
58:18which allows for the structuring of
58:21investigations , prosecutions and
58:23eventual convictions in money
58:25laundering cases . I am referring to the
58:30indication of carrying out anomalous
58:34financial transactions that cause the
58:38generation of an imbalance or an
58:41unjustified growth in assets , an
58:45unusual increase in assets .
58:48Additionally , there is the absence of
58:51lawful businesses to explain the
58:53financial situation , or if there are
58:55lawful businesses , legitimate
58:57businesses , they are nevertheless
58:59insufficient to explain the financial
59:01situation . A second and third
59:04indication is that the person may be
59:07facing a situation of inexplicable
59:09economic growth . They may also lack
59:13sufficient businesses to explain it .
59:16They may be in a situation of
59:18informality , and informality strictly
59:21speaking is not a money laundering
59:24crime . Thirdly , and jointly , the
59:29demonstration , the proof of this third
59:31component of the triple pillar of
59:34evidence , the link for the inquiry , the
59:37indication of a link for the inquiry ,
59:39is needed . To say that this unjustified
59:44growth in assets related to anomalous
59:47operations of someone who lacks
59:50sufficient legitimate businesses to
59:53explain said situation , well , this must
59:57be the result of the generation of
59:59criminal funds due to previous criminal
1:00:03activities of the accused or third
1:00:06parties with whom he maintains a bond
1:00:09of trust . No , this verification of the
1:00:13link to commit a crime or connection to
1:00:16criminal activities is absolutely
1:00:18essential because the imbalance alone
1:00:21may not be money laundering , it may be
1:00:24another type of criminal or even
1:00:26extra-criminal illegality . The mere
1:00:30handling of funds without having full
1:00:33documentation to explain the economic
1:00:37management , that is informality , not a
1:00:40money laundering crime , but it is money
1:00:43laundering when the performance of
1:00:46these unusual operations that cause an
1:00:49increase in assets in a situation of
1:00:52imbalance are the product of previous
1:00:55criminal activities . That is money
1:01:01laundering , the performance of economic
1:01:03operations with criminal funds , right ?
1:01:09That will allow us to establish this
1:01:11deduction , and with this I will
1:01:12conclude , right ? The structure of
1:01:15circumstantial evidence , the
1:01:17predominant evidentiary method for
1:01:20structuring money laundering cases ,
1:01:23both in its various standards of
1:01:25conviction in the investigation , in the
1:01:28accusation , in the prosecution , even
1:01:31when it is said that the development of
1:01:34circumstantial evidence , the motivation
1:01:37of circumstantial evidence , is a
1:01:41strictly judicial activity in the
1:01:44decision-making phase , right ? However ,
1:01:48it is the Public Prosecutor's Office
1:01:50that postulates the evidence of the
1:01:52facts constituting the crime of money
1:01:55laundering and a good part of the
1:01:57typical components are not proven by
1:01:59direct evidence , as is the case of
1:02:01intent , as is the case of the criminal
1:02:03origin of the assets . There will be
1:02:06others that may have a scheme of direct
1:02:09evidence , right ? For example , the
1:02:11traceability of an operation . What is
1:02:13the conducive means ? The documents of
1:02:15that traceability . direct evidence of
1:02:18the same , direct evidence of a transfer
1:02:20, but they are not limited to typical
1:02:22components based on accreditation with
1:02:25direct evidence that structure
1:02:26laundering . There are others that are
1:02:29predominantly accredited through the
1:02:33circumstantial evidentiary method ,
1:02:35again the intent , again the subjective
1:02:37element of the wrong , again the
1:02:39criminal origin of the assets .
1:02:41Therefore , it is the Public
1:02:43Prosecutor's Office who , if it intends
1:02:45to impute the configuration of a crime
1:02:48to someone , must postulate the
1:02:50indications or the basic facts to
1:02:52deduce that these elements have been
1:02:54configured , particularly those that are
1:02:56structured through the circumstantial
1:02:59evidentiary method and not wait until ,
1:03:01only in the decision phase , the
1:03:03jurisdictional body exercises this
1:03:05evidentiary method , right ? Naturally ,
1:03:10the non-evaluative process of
1:03:12circumstantial evidence is not limited
1:03:15to just analyzing the accusation thesis
1:03:18and its elements of charge . It is also
1:03:23required , in fact , it is structurally
1:03:26required in circumstantial evidence to
1:03:29assess and examine any counter-evidence
1:03:32that may exist or the counter-evidence
1:03:35that the defense may have obtained ,
1:03:38because the latter could give rise to
1:03:41the so-called alternative hypothesis as
1:03:44plausible as the prosecution's thesis .
1:03:49In that sense , the exercise of
1:03:51circumstantial evidence is not a
1:03:53unilateral act based on what the Public
1:03:56Prosecutor's Office proposes , an
1:03:58assessment of its elements of charge ,
1:04:00but it is also an obligation to examine
1:04:02the evidentiary fabric , including the
1:04:05defense's evidence that could call into
1:04:07question the solidity of the
1:04:09incriminating elements based on the
1:04:11counter-evidence or counter-evidence
1:04:14that the defense could have presented .
1:04:18No , they are aspects that I more or
1:04:21less wanted to share . I have already
1:04:24run out of time , a thousand apologies
1:04:26and I don't know if there are any
1:04:27issues , procedures , or questions , I
1:04:29would be happy to answer them , right ?
1:04:31At your disposal . If anyone wants to
1:04:34ask a question , I have several , two
1:04:41topics while you think about it . It is
1:04:45common for prosecutors to request
1:04:47financial information well beyond the
1:04:49time frame that should normally be
1:04:52investigated , right ? And with this ,
1:04:55businessmen find themselves in a
1:04:57predicament of gathering documentation .
1:04:59Sometimes they have changed accountants
1:05:00. I saw a case where the accountant had
1:05:02even passed away , right ? And they
1:05:03couldn't find the evidence . What is the
1:05:06remedy there ? A protection of rights .
1:05:11Yes , yes , yes , yes . That also happens
1:05:14to me , right ? The Public Prosecutor
1:05:16exceeds its fixed financial period ,
1:05:21right ? It even goes beyond the
1:05:23established financial period and begins
1:05:25to request information that exceeds it ,
1:05:27right ? Faced with this , the remedy is
1:05:31to clearly inform the Public
1:05:33Prosecutor's Office that it is going
1:05:35against its own actions and then , uh ,
1:05:38follow the protection , right ? The
1:05:40jurisdictional body DBD . Control , right
1:05:43? In fact , there is a very interesting
1:05:47appeal that was achieved by Professor
1:05:49Julio Espinosa Goyena , in a report by
1:05:51Professor San Martín Castro , by Master
1:05:54San Martín , right ?, where a period , a
1:05:56temporary part of the economic period ,
1:05:59there was already that object of
1:06:01pronouncement , right ?, favorable to the
1:06:03defense , but in a new investigation a
1:06:06part of the same period was
1:06:08incorporated again , let's say , cleared ,
1:06:10right ? declared lawful . Is the Public
1:06:16Ministry authorized to legitimately
1:06:18continue an investigation into aspects
1:06:20where the situation of the accused has
1:06:22already been resolved in a decided
1:06:24matter ? Clearly not . No , it cannot
1:06:28exceed its object of investigation ; it
1:06:30cannot incorporate that for which there
1:06:32is already a pronouncement of
1:06:34legitimacy , as was resolved in this
1:06:35appeal in a guardianship notebook in
1:06:37double conformity . By the way , the
1:06:40refusal of double conformity was the
1:06:43importance of exercising the cassation
1:06:46function , right ? The authentic exercise
1:06:49of the constitutional cassation
1:06:50function that was previously carried
1:06:51out by the Supreme Court . Figel , do you
1:06:58think these are times for reform and
1:07:00change ? Do you think procedural
1:07:06treatment should be incorporated into
1:07:08the criminal procedure code ? In other
1:07:13words ,
1:07:13with its own particularities . Yes , with
1:07:16its own particularities for money
1:07:17laundering ,
1:07:19that is , a procedural statute for money
1:07:22laundering in our code , right ? I don't
1:07:24think so . I think that generating this
1:07:29would cause the same thing to happen
1:07:32with respect to other economic crimes
1:07:35and other crimes that are , let's say ,
1:07:37complex , right ? For example , computer
1:07:40crimes , tax crimes or organizational
1:07:43crimes . However , the investigation is
1:07:48more complex in these cases of economic
1:07:52crimes , right ? The reform process
1:07:58should pay attention to the fact that
1:08:01we are dealing with acts of
1:08:02investigation that are not conventional
1:08:05in order to provide adjustments , right
1:08:08?, that allow the Criminal Procedure
1:08:10Code itself to update the protocols for
1:08:13action , the procedures to be able to
1:08:15carry out more efficient investigations
1:08:18. No , we are not dealing with common
1:08:21crime , but I do believe that it is
1:08:23essential to establish reforms , right ?
1:08:27Well , I would like to deeply thank
1:08:30Professor Fidel Mendoza because he has
1:08:32developed his dissertation with the
1:08:35passion of someone who loves his career
1:08:38and loves what he defends . There is
1:08:42also Dr. Roger Mautino who would like
1:08:44to ask a question . Yes , Dr. Mautino .
1:08:49Dr. Miguel , good evening . Thank you
1:08:51also to Dr. Mendoza , your dissertation
1:08:54was very clear and eloquent as always .
1:08:57Dear doctor , I only have one question .
1:09:00While it is true that the methods for
1:09:02initiating an investigation for money
1:09:05laundering , it is true that today they
1:09:08can even be promoted through direct
1:09:13complaints to a specialized asset
1:09:15laundering unit of the National Police
1:09:18or directly through the Public
1:09:19Prosecutor's Office . But also , the
1:09:24other thing you mentioned , through a
1:09:26report from the Financial Intelligence
1:09:29Unit regarding a transaction that may
1:09:31be unusual or suspicious . The question
1:09:36is , any investigation for the crime of
1:09:39money laundering in any of its forms
1:09:41must necessarily be supported or based
1:09:44on a report from the Financial
1:09:46Intelligence Unit . And if the defense
1:09:50doesn't have it , what could it argue in
1:09:53favor of the client , for example ? Thank
1:09:56you for your question , don't you ?
1:09:58Excellent , Rogeratil , thanks . The
1:10:01question is absolutely pertinent ,
1:10:03important , and in fact there are many
1:10:05cases that are designed in this way . In
1:10:08other words , there are different ways
1:10:12to initiate a preliminary investigation
1:10:15for money laundering , for example ,
1:10:18complaints about bad competitors ,
1:10:20creation of fake news or management of
1:10:24public platforms , in short , search
1:10:26engines where news articles are
1:10:29designed without much control , printed
1:10:33and become part of the complaint or
1:10:34they are also initiated by
1:10:39investigations carried out by the
1:10:41police , right ? Or even when suddenly
1:10:44the Financial Intelligence Unit
1:10:45responds to a certain request made by
1:10:47the Prosecutor's Office , the Financial
1:10:49Intelligence Unit leaves some
1:10:50additional names and the Prosecutor's
1:10:52Office realizes that there are people
1:10:53it was not providing attention to . And
1:10:56an investigation is also initiated into
1:10:58these latter , right ? Now , I strongly
1:11:01believe in the need to decongest the
1:11:05system , right ? Because again , right ?
1:11:10And there are official figures that
1:11:12show an overload of the prosecution
1:11:14system and the limited success rate ,
1:11:17which is limited to 4 % in Peru , right ?
1:11:20In other words , 96 % of cases fail , right
1:11:22? And that is because there is no
1:11:25decision or , well , it is fair to
1:11:28recognize that things are improving ,
1:11:30things are improving not long ago .
1:11:35There was no decision to select cases ,
1:11:37to establish early decision-making
1:11:40processes , as was done at the time when
1:11:42the Criminal Procedure Code began ,
1:11:45where it was established what had a
1:11:47prognosis for progress , not only
1:11:50success , right ? What could be continued
1:11:54and what could not . Because under this
1:11:58logic of decongesting the process , many
1:12:01of the cases that Dr. Roger rightly
1:12:04refers to should not necessarily give
1:12:07rise to a preliminary investigation .
1:12:09There could be a decision to dismiss
1:12:11them in advance , right ? There could be
1:12:14a phase that is not prohibited , mind
1:12:17you , not prohibited by law , of a
1:12:19specific prior investigation , right ? To
1:12:23establish this precisely . Which cases
1:12:25will go through the preliminary
1:12:27investigation and which cases will not ?
1:12:30Obviously , in the scenarios of
1:12:33financial intelligence communications ,
1:12:35these already have a different nature .
1:12:39We are no longer dealing with an
1:12:41anonymous complaint or information
1:12:43provided by bad competitors , right ? And
1:12:47the financial intelligence documents
1:12:50that tend to be sent to the Public
1:12:52Prosecutor's Office , in the assessment
1:12:55of them , the need for simple initial
1:12:57suspicion is overcome , it is standard ,
1:13:00right ? And they give rise to
1:13:03preliminary investigations based on
1:13:05financial intelligence documents . It is
1:13:07clear that , except for a specific type
1:13:09of financial intelligence document , in
1:13:11all other respects they have no
1:13:13probative value . There is a legal
1:13:15prohibition on assessing evidence and
1:13:18using them , right ? But the Public
1:13:21Prosecutor's Office can adopt the
1:13:23information contained therein , the
1:13:25analyses , the traceability , the
1:13:28financial intelligence study carried
1:13:30out by the FIU and use this as the
1:13:33basis for its document initiating
1:13:35proceedings and adopt the hypothesis or
1:13:38developments made by this financial
1:13:40intelligence document , which will be
1:13:43kept confidential , right ? In fact , it
1:13:46would be a desirable path for
1:13:48investigations and that it would make
1:13:50it possible to start investigations .
1:13:53Well , it has all the legitimacy , right ?
1:13:58The problem lies in understanding , or
1:14:00rather the problem lies in
1:14:01understanding that because there is a
1:14:03financial intelligence document we
1:14:05necessarily have to go all the way to
1:14:06the prosecution . There are a number of
1:14:10cases where financial intelligence , the
1:14:13Financial Intelligence Unit , has
1:14:15established an analysis of the
1:14:16traceability of people , but the
1:14:18competent body to determine whether
1:14:20these operations are with criminal
1:14:22funds and , therefore , whether we are
1:14:24facing a probable cause of the crime of
1:14:27money laundering , is not the Financial
1:14:29Intelligence Unit ; it is the Public
1:14:31Prosecutor's Office . It will use
1:14:33financial intelligence reports as input
1:14:36. I have come across cases , for example
1:14:40, of preliminary investigations based
1:14:42on multiple financial intelligence
1:14:44documents , but I believe that , with
1:14:46good judgment , the prosecutors ' offices
1:14:48understood that beyond the existence of
1:14:51these reports , they do not constitute
1:14:53an impediment to closing the case . When
1:14:57they are carried out , all the
1:14:59investigative acts that allow the
1:15:00fulfillment of an objective are clear .
1:15:02We were dealing with legitimate funds ,
1:15:04right ? Thank you . Thank you , dear Roger
1:15:07.
1:15:09Look , at the beginning of the reform in
1:15:11Chile , the early decision-making
1:15:14prosecutor's office was proposed , right
1:15:16? In other words , the best prosecutors
1:15:19who knew the most about the theory of
1:15:21crime and the theory of evidence , they
1:15:24would go to say what should or should
1:15:26not be advanced and what could be
1:15:28applied in any specialty , right ?
1:15:31Professor José Rogelio González
1:15:33López called them the filters for
1:15:34entering the process , right ? And we are
1:15:37saturated because the process takes too
1:15:38long . I wanted to thank you deeply ,
1:15:41Fidel Robado , for a time to enjoy with
1:15:43the family that is quite scarce due to
1:15:45the academic issue , but the truth is
1:15:47that it has been a master class . Thank
1:15:50you very much , this will really be in
1:15:53FR and in Bajo Academia and everyone
1:15:55can access it . It will surely be an
1:15:57input for a conference that we will
1:15:59invite you to in due time , Fidel . Thank
1:16:01you very much . It's a pleasure .