— More than 3 weeks after the coup attempt by the former president castillo And with the clearer picture, how do you remember that day? Did you notice something strange in the former president?
— On December 7, I had a brief telephone communication with the president, I saw him on the 6th. That communication was basically to coordinate the vacancy process in the Congress. I could not give more impressions of how he was. The perception that I had of him was not of any shock or surprise, nor was it a major issue that made me suspect that there was a plan other than the legal one that had been coordinated the previous days.
— What time was this call?
— I call you at approximately 9.00 am. We were going to see each other there (Congress) with Jose Palomino Manchego. (The president) He said: “Okay, okay, see you.”
— So, three hours before the message to the Nation, the plan was to go to Congress and defend against the vacancy motion.
– That’s right, never touched on the subject. Not even in the call did she say what would happen in that possibility, what alternatives there are and what consequences there would be. The subject was not even hinted at. A totally surprising decision and outside of the scenarios and expectations that one might have.
— After your resignation, have you had any communication with the former president or someone from your circle?
— Since that day I have not spoken to the president or his wife. But that day I received a call from the doctor at night Hannibal Torres where he tells me that if I could resume the defense in this case of rebellion. I told him no, that my resignation was irrevocable. After that there has been no rapprochement.
— Precisely in this case of rebellion, do you agree with the accusation made by the Prosecutor’s Office to the former president?
— From a legal point of view, I think it is the weakest case that the Prosecutor’s Office has. Not the strongest case the Public ministry because, by rule of the principle of legality, criminal conduct is governed not from what one believes, but from what the norm establishes. The law is penal, it is very clear when it maintains that the rebellion must necessarily take up arms. Our law has not provided for the figure of the person who wants to take up arms or the one who plans. If there is no uprising in arms, there is no crime. Let’s not talk about attempt because that means starting, executing a crime, but not consummating it.
What there has been and is indisputable for anyone is a constitutional violation because the president dissolves congress outside of what the Constitution provides for (two refusals of confidence). What he did was an unconstitutional dissolution of Congress and that is a constitutional infraction, but it is not a crime.
— These arguments have not been considered by the Preparatory Investigation Court and the Permanent Criminal Chamber of the Supreme Court, both in preliminary detention and in preventive detention. Both instances maintained that it was an alleged crime in flagrante delicto.
I don’t agree with that from a legal point of view. What does it mean to be in flagrante? That an agent sensorily perceives that a crime is being committed. So to stop him, they would have had to see that he was taking up arms. If there were no weapons in the search, how can a police officer legitimately say “I’m arresting you in flagrante” for a crime that means raising arms if there has been no raising of arms?
I believe that the defense of Pedro Castillo should have focused on the procedural danger, as the defense of Hannibal Torres. And finally they dictated the appearance with restrictions in the first instance and in the second instance they added the impediment to leaving the country, precisely because of a moderate procedural danger. The main requirement for preventive detention is procedural danger. (…) The defense would have raised the figure of the notorious fact. What does the danger of flight mean? It means having the possibilities and capabilities to be able to hide yourself. The question is: within Peru, would Pedro Castillo have the facility to hide? All of Peru knows him. If there is a public person that everyone knows, it is Pedro Castillo. (…) The defense dedicated itself more to the issue of the crime and has wasted time there because the judges in the first and second instance had already said that there would be a crime.
— One of the defense arguments of the former president was the accusatory resolution of Congress, where there was no constitutional accusation process but an agreement made by the Plenary itself. The Supreme Court has said that this is valid because it is a flagrant crime and not a clandestine crime.
— For me there is a clear attack on due process. It is not that the Constitution says: “Oh, when you are in flagrante delicto, I avoid pre-trial or do it in a single act and I do not notify the senior official or his defense to issue an accusatory decision.” The violation is so clear that for officials with a lower hierarchy, I am talking about Betssy Chávez, Roberto Sanchez y Willy Huerta, they are going to be followed by a process of impeachment that is going to start in the Subcommittee on Constitutional Accusations, then the Permanent Commission and it will end in the plenary session of Congress. And it’s going to take its months.
How do you follow the political bias of ministers and congressmen and not the highest official? In other words, an express preliminary hearing, you dictate an accusatory resolution without listening to his defense, without listening to the former president and everything so that the criminal process can be continued. There is a serious attack on the principle of procedural legality. The judges have already raised a position on the matter, but the last word has not been said, the constitutional justice has not yet analyzed the process.
— What could I continue now?
— Criminal justice is closed and constitutional justice is opened. A habeas corpus can be filed. Go through a first and second instance, and could reach the Constitutional Court. But let’s not forget that the other case promoted by the National Prosecutor on collusion, influence peddling and criminal organization, which also includes Geiner Alvarado and Juan Silva. There you will see an accusatory resolution. As much as at the time they agree with Pedro Castillo and annul the entire procedure because the preliminary trial was not followed as it should and return to zero pages, it will be a pyrrhic victory, since, by the time that happens, I probably already have the other formalization on me and I have another request for preventive detention in another case that is already advanced and the preliminary hearing was fulfilled.
— The cases that you consider most solid.
— Sure, because it has already passed to the Permanent. The Plenary approves, gives the accusatory resolution, goes to the Prosecutor’s Office, presents it before the supreme judge and advances the case. When constitutional justice resolves, if he agrees with him, it will be a Pyrrhic ruling for a matter of time, because progress has already been made with the other.