Minister Javier Arce would incur in the crime of generic falsehood for omitting information in an affidavit | ANALYSIS | Peter Castle | | POLITICS

Although he came out in front via Twitter to respond to a report by the “Fourth Estate” regarding their criminal and judicial recordsthe recently appointed Minister of Agrarian Development and Irrigation, Javier Arce Alvaradoit would be –on the contrary– complicating its situation as owner of that sector.

After the aforementioned Sunday revealed that Arce has the status of a free prisoner in a process for generic fraud that began in June 2021, the minister released certificates from this year indicating that he has no criminal, judicial or police record.

However, he acknowledged that he does have “previous complaints” as a popular leader and “others that are archived.” In addition, he admitted that he was imprisoned for usurpation of functions for a case that dates back to 1997: “I was unjustly detained by the police and, after the arrest, the same Judicial Power acquitted me.”

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The thing is, despite admit that he has had complaints and was even acquitted, Javier Arce Alvarado has not recorded said information in the affidavit of judicial, fiscal and administrative records that, according to the Ley 31457is part of the procedure for the appointment of ministers. The official signed said document on May 22, the day he was sworn in.

For experts consulted by Trade, the minister omitted to declare information in his affidavit, where he says he does not have or have had judicial sentences for intentional or negligent crime notified as perpetrator or accomplice, nor tax investigations and/or judicial proceedings for intentional or negligent crime as defendant or accomplice. Therefore, they warned of the possible commission of the crime of generic falsehood.

What the rule says

Law 31457, published last April 22, establishes that the supreme resolution that appoints a minister must be accompanied by a sworn statement that gives a detailed account of “all tax investigations, judicial processes and administrative procedures in which he is involved.” or was involved as a defendant or accomplice, the state in which said processes and procedures are found, as well as the decision of the sentences or administrative resolutions, if the process had concluded.

It also states that the declaration “is brought to the attention of the President of the Council of Ministers and the President of the Republic, prior to the issuance of the respective supreme appointment resolution.” And it underlines that “the president of the Council of Ministers is responsible for verifying the content of the affidavit and informing the Congress of the Republic within a period not exceeding five business days after the appointment resolution is published.”

Ley 31457.

The form to be filled out by appointees consists of two sections. The first refers to the minimum requirements to be a minister and the second consists of the person appointed to provide detailed information on judicial, fiscal and administrative records, in which he can specify whether they are cases in process, contested, firm, if he is rehabilitated or if they have been archived.

In addition, there is an extra space: “Observations: detail other relevant information”. Finally, it is noted that if the declaration does not conform to the presumption of veracity regulated by the Law of General Administrative Procedure, the signatory is subject to the provisions of article 438 of the Penal Code –crime of generic falsehood– “and the other administrative responsibilities and/or penalties that correspond, in accordance with the current legal framework.”

Arce has stated that he has nothing to report, despite what he himself has revealed on Twitter.

Part of the tweets of Minister Javier Arce Alvarado.
Part of the tweets of Minister Javier Arce Alvarado. / Twitter

Former anti-corruption attorney Luis Vargas Valdivia affirms that the law is precise with respect to the information requested. It maintains that although in the part of data on sentences it could be interpreted that it refers only to convictions, it is in the section on fiscal investigations and judicial processes, or in the part of observations of both segments, where the minister could have declared on the complaints or judgment to which he referred.

“The norm is clear in the sense of indicating if it has or has had ongoing tax investigations or proceedings. If he has had them, they have acquitted him and he has been filed, he must record the information indicating the fact that he has been filed and acquitted. […] They don’t set a deadline, they don’t tell you in the last five or ten years, if they don’t have or have had an ongoing investigation or judicial process,” he explains.

The criminal lawyer Andy Carrión maintains that Arce could not claim that the sentence to which he refers dates from many years ago, since “for the purpose of consigning information there is no statute of limitations.”

“It is very precise in the affidavit as to allege some kind of ignorance. Moreover, he can say that he has not recorded the information because he was acquitted, but what the document says is that even in that context he should have recorded that information”.

Iván Lanegra, general secretary of Transparency, indicates that Arce is practically accepting that there is information that he did not include in his affidavit. “Sometimes the officials are shielded by the type of detail of the formats, but the formats are open. There is no reason not to record this important information. The obligation is very clear: it tells you about any type of procedure in which you have been charged as the perpetrator or accomplice”, he points out.

Samuel Rotta, executive director of Proética, the Peruvian chapter of Transparency International, considers that Arce should have provided all the required information, since what the aforementioned law seeks is that all the background of those who are appointed ministers be known.

“It is distorting the objective of this norm, that what it seeks is for it to be known, for the population to be able to know what the profile of the official who is being appointed to a ministerial position is, in terms of all his administrative and criminal records. By not doing it, by overlooking it, you’re going against that goal,” he says.

This is the affidavit presented by the new minister

Affidavit of Javier Arce, owner of Midagri.
Affidavit of Javier Arce, owner of Midagri.
Affidavit of Javier Arce, owner of Midagri.
Affidavit of Javier Arce, owner of Midagri.
Affidavit of Javier Arce, owner of Midagri.
Affidavit of Javier Arce, owner of Midagri.

Omission, illicit and responsibility

Under this scenario, Vargas Valdivia asserts that Arce has lied when stating in his affidavit that he has not had judicial proceedings, since the minister himself acknowledges that he has had an acquittal. Similarly, the former prosecutor points out that if there are current tax investigations and they have not been declared, the truth is also being ignored.

Therefore, the lawyer referred that “there is an omission of information that would warrant the prosecution to initiate an investigation in order to determine if we are facing the crime of generic falsehood.” “It would have to be the Office of the Prosecutor of the Nation because he has the status of a minister. Start a preliminary investigation and, if you consider that it is pertinent to open a criminal proceeding, ask Congress to lift the jurisdiction to be able to prosecute him, ”he says.

The criminal expert Carrión agrees with this assessment, since he considers that Arce “has falsified information” by omission. “He had the express knowledge that if he did not record this data or omitted it, a criminal investigation would be carried out, with which he could not claim ignorance in this regard. He would deserve to open an investigation on generic falsehood, ”he says in reference to the warning established in the affidavit format itself.

For his part, Rotta insists that an obligation corresponding to a requirement to be appointed has been breached.

“It is very clear, he is not asking you if you were convicted or if you were acquitted. He’s asking you if you had or not. The state is not relevant, when it was, the important thing is to know the background […] If it is a crime and it is clearly established, the prosecution can initiate an investigation ex officio”, he warns.

Finally, Lanegra emphasizes that, in addition to the possible criminal consequences, the fact has implications of political responsibility, since it is up to the PCM to verify the affidavit.

Failure to place it, at best, is gross negligence. That is why there may be administrative sanctions and there are political responsibilities, because the minister has seriously affected the trust that the government itself and the citizens can have in him”he adds and maintains that it is important to determine the information that Congress has in this regard.

“There would be functional responsibility here. It would be necessary to determine who is the official of the Presidency of the Council of Ministers in charge of carrying out the verification. Although it is said that he is the president of the Council of Ministers, it is obvious that he delegates that function to some official. Identify the official, summon him to testify in order to say whether or not the adequate verification has taken place. This could be part of the prosecution’s investigation,” concludes Vargas Valdivia.

As this newspaper reported at the beginning of May, different ministers admitted that they have tax investigations in progress. And even several consigned processes already dismissed. For example, the Minister of Defense, José Gavidia, stated that he had filed a judicial process for attacks against women or members of the family group. Similarly, Félix Chero, head of Justice, reported 14 archived tax investigations.


The crime of generic falsehood in the Penal Code

Article 438. The one that in any other way that is not specified in the preceding Chapters, commits falsehood by simulating, assuming, altering the truth intentionally and to the detriment of third parties, by words, facts or usurping a name, quality or employment that does not correspond to him, assuming alive a deceased person or who has not existed or vice versa, shall be punished with imprisonment for not less than two nor more than four years.

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