The arrest of President José Pedro Castillo on December 7, and the subsequent coercive measures against him, have been justified under the pretext that the president was arrested in “criminal flagrante delicto.” This supposed procedural configuration has also served to disregard legal protocols and declare his position vacant, omit the impeachment and other procedural raids that he has been subjected to.
The Political Constitution of Peru in its article 2, paragraph 24.f establishes as a rule that “no one can be detained” and, as exceptions to this rule (dangerously unobserved throughout the region, giving magistrates a wide margin of punitive arbitrariness with preventive prisons without conviction, which actually invert the burden of proof, violating due process, the principle of innocence and the right to defense in court), that this can only happen by a judicial order, sufficiently argued or, by of the police authorities, when they notice a “case of flagrante delicto”. Likewise, Article 259 of the Code of Criminal Procedure establishes four assumptions for this type of detention, which adds an exaggerated term of twenty-four hours between the criminal act and the intervention of the alleged perpetrator to the classic modalities of flagrante delicto, a modification that has been the subject of criticism, including from the Supreme Court.
Thus, arrests for flagrante delicto necessarily imply that the agent must be surprised at the time of the commission of the crime or immediately after having committed it, or because he is surprised with the effects or materials that are involved in the commission of the crime, always being linked to the sensory perception of the person who detains the alleged perpetrator of the act. However, in the case of President Pedro Castillo, a strange and unconsidered form of flagrante delicto has been introduced, which we are going to call ” flagrante delicto by superior order “, since it is the first thing that occurs to us if we take into account the description made, Regarding the case, in the resolution that imposed the pretrial detention: “After JOSÉ PEDRO CASTILLO TERRONES had already been dismissed, PNP Colonel Walter Bryan Erick Ramos Gómez (Presidential Security Division Chief), received the telephone call from PNP General Ivan Lizzetti Salazar ( Director of State Security), ordering that by order, arrest JOSÉ PEDRO CASTILLO TERRONES, for being in flagrante delicto.”
Thus described the facts, it is verified that, for the arrest of the Peruvian president, a superior order has mediated, which disqualifies the procedure to be considered as arrest in flagrante, since this procedural species, for its typical configuration, implies immediacy and sensoriality of a flamboyant fact: it is configured by sensory evidence.
We believe that behind the use of this atypical form of flagrante delicto, it is intended to comply with a political slogan of revenge; It is notorious that in the case of Mr. Castillo Terrones, he has not only been arrested for an atypical act and therefore lacking criminal relevance, for which reason there could not have been any type of flagrante delicto, but there is no flagrante delicto either, because the captors did not act based on their sensory perception but on “superior orders”, (and the image of Keiko Fujimori with Dina Boluarte only aggravates these suspicions, as well as the media siege around the dozens of deaths in Peru, as a result of of an illegitimate government) which in turn reflects the expression of a political slogan materialized in a coup plan to oust the first president of rural Andean origin.
It is important to note that the deaths do not begin until after the coup suffered by Castillo. And they are the product of it: to maintain itself in power, the Boluarte regime, which is already negotiating with Fujimorismo, while Castillo is violated all the guarantees of due process and his right to defense is undermined, hindering and even making difficult the work of his lawyers, he has already assassinated more than sixty Peruvians, requisitioning and illegally detaining (“preventive”) dozens of university students, in Lima or Ayacucho. CELAC cannot continue to remain silent. The image of the tanks entering through Gate 3 of the Universidad Mayor San Marcos is the image of a dictatorship. Not of a democracy. The students were handcuffed to the ground.
It is curious that Fujimori is imprisoned in the Barbadillo prison for crimes against humanity, but the government of Dina Boluarte continues to apply its anti-terrorism laws even today to kill and detain people. Those laws are unconstitutional. But the media and the OAS say nothing about it.
No one echoes the story behind the acquittal of the sister of the National Prosecutor, Patricia Benavides, a shareholder in mining companies, who removed the prosecutor who was investigating her sister, a judge linked to drug trafficking, in a case that it had been denounced by Castillo himself.
Guido Croxatto (UBA) and Wilfredo Robles Rivera (USMS), lawyers for Pedro Castillo