Tackling Corruption in Peru, 2011–2014 Synopsis

BATTTLING A CANCER: TACKLING CORRUPTION IN PERU, 2011–2014

SYNOPSIS From 2000 to 2009, Peru’s justice system successfully prosecuted former president Alberto Fujimori and other high-level public officials for acts of corruption committed during the previous decade. But the country’s judicial institutions struggled to curb newer corruption networks that were operating with impunity throughout the country. Because the networks had penetrated the justice system itself, it was increasingly difficult to prosecute—let alone convict—people who had participated in briberies, kickbacks, or other schemes. In the 2011 presidential election, Ollanta Humala, whose campaign slogan was “Honesty Makes a Difference,” captured 51% of the vote and gave a boost to reformers within the country’s legal institutions. Humala joined the Open Government Partnership, strengthened Peru’s anticorruption commission, and brought together top leaders from the country’s judicial and legal institutions to improve the government’s response to corruption. In 2012, the comptroller general, the public prosecutor (attorney general), and the president of the judiciary created a new subsystem to bring to trial those officials accused of corruption. They created a new prosecutorial team and designated a specialized chamber to hear the most-complex corruption cases. At the same time, the Ministry of Justice and Human Rights strengthened its capacity to investigate and bring to trial cases involving the misuse of public resources. By 2015, several cases were in preparation, nearing trial. The fight against corruption in Peru continued to face many obstacles, however, including the perception that anticorruption efforts had lost top-level support.

Blair Cameron drafted this case study based on interviews conducted in Peru in August 2015. Case published December 2015.

INTRODUCTION corruption continued to spread. It flourished “Corruption in Peru is like a cancer,” without effective control mechanisms.” asserted Walter Albán, who served as Peru’s In 2009, César San Martín, presiding judge ombudsman in the early 2000s, led the interior of the Special Criminal Chamber of the Supreme ministry during 2013–14, and became head of Court, had sentenced Fujimori to 25 years in Proética, the Peruvian chapter of Transparency prison after the ex-president’s conviction on International, in 2015. “In the era of President charges of human rights violations committed Alberto Fujimori, it was a great tumor. We during his decade in office, from 1990 to 2000. removed it, but some cancer remained, so the Prosecutors also accused Fujimori and his co-

ISS is a joint program of the Woodrow Wilson School of Public and International Affairs and the Bobst Center for Peace and Justice: successfulsocieties.princeton.edu. ISS invites readers to share feedback and information on how these cases are being used: [email protected]. © 2015, Trustees of Princeton University

Blair Cameron Innovations for Successful Societies

conspirator Vladimiro Montesinos, who was de crime groups sought to capture the incoming facto head of the National Intelligence Service, of revenue. orchestrating a corruption network that had To cover up their wrongdoing, the new embezzled public funds, provided favors for corruption networks applied many of the same friends, and bribed media companies so they tactics the Fujimori-Montesinos network had could build electoral advantage. More than a used. Carlos Rivera, a lawyer at the Legal Defense thousand people were allegedly involved. Institute, a nongovernmental organization based The trials culminated a process that had in Lima, the capital city, said provincial and begun in September 2000, when a series of videos municipal leaders “bribed the local media and incriminating Montesinos appeared on national persecuted the little independent press that television. The lead investigator at the time was existed in the regions. They “filled as many José Ugaz, whom Fujimori had appointed as a positions as possible in the public prosecutor’s state attorney (procurador ad hoc) within the office,” and “they made a plan to control judges Ministry of Justice and Human Rights. Ugaz, a should any case against them reach the judiciary.” prominent criminal lawyer, was originally tasked By 2010, the institutions that had put with investigating Montesinos, but the Fujimori behind bars had weakened. Comptroller investigation soon uncovered evidence General Fuad Khoury announced that his office incriminating Fujimori as well. Special had reported more than 10,000 public officials for prosecutorial teams within the office of the public “presumed” acts of corruption committed at the prosecutor’s office (Ministerio Público, an national, regional, and municipal levels from the autonomous institution) were in charge of the beginning of 2009 until mid-2011.1 But few of the Fujimori-Montesinos prosecutions, and special allegations resulted in prosecutions. chambers set up within the Superior Court of In May 2011, Khoury teamed up with José Lima and the Supreme Court of Peru heard the Peláez, newly appointed attorney general or cases. public prosecutor for the nation, and César San Ugaz recalled that the corruption scandal Martín, newly elected head of the judiciary and had rocked the country. “The Peruvian state the judge who had sentenced Fujimori to jail. The collapsed,” he said. “We had all these videos three signed a joint Declaration against released that revealed the high level of corruption Corruption, pledging to improve coordination around the country, with Supreme Court judges between their institutions so that more cases involved, with the public prosecutor involved . . . could be brought to trial. the entire judicial system was captured by criminal Just a month later, Peruvians signaled their networks.” backing for anticorruption efforts by electing a During the next 10 years, more than 200 new president, Ollanta Humala, who had trials were held to prosecute those charged with campaigned with the slogan “Honesty Makes a violating Peru’s anticorruption laws. Fujimori, Difference.” In the election, Humala garnered a Montesinos, and Blanca Nélida, the public slight edge over his opponent, Keiko Fujimori, prosecutor for the nation (fiscal de la nación), were the former president’s daughter, who had raised convicted and given lengthy prison sentences. But the possibility of giving her father a presidential despite the court convictions of those high-level pardon if she won. In a June runoff, Humala won officials, corruption soon re-emerged in the form 51.45% of the vote to Fujimori’s 48.55%. of new regional networks. As the central At the outset, the new president and government devolved powers to the regions and reformers in the country’s main independent as a mining boom opened new streams of money (autonomous) legal institutions shared common and resources, regional leaders and organized goals. Shortly after he was sworn in, Humala

Blair Cameron Innovations for Successful Societies

Box 1. The New Criminal Procedure Code In 2004, Peru introduced a new criminal procedure code and began switching from an inquisitorial legal system to an adversarial system. Under the old system, both judges and public prosecutors had shared an investigative role. With the new system, public prosecutors were responsible for investigations, and judges had totally distinct roles as impartial adjudicators. The 2004 code was introduced region by region, but in 2010, President Alan García decided that the code should be implemented for all corruption cases nationwide. At the time, more than 60% of the country was still operating under the old criminal procedure code, including the Lima region, where most of the corruption cases took place. The change went into effect in January 2011. “There is an oral hearing wherein everyone participates,” Arbizu said of the new system. “The public prosecutor opens by presenting the accusation. Then the state attorney has time to present the civil damages that the state is seeking to reclaim. Then the defense attorney has the floor to speak on behalf of the accused. After that is the submission of the evidence. Then we have the experts’ opinions, and, finally, debate. After debate, the judge makes a ruling.”

indicated his interest in joining the Open By 2011, however, the limits of the approach Government Partnership (OGP), a multilateral had become apparent: The executive’s main organization that aimed to secure concrete weapon in the fight against the Fujimori- commitments from governments, with a view to Montesinos corruption network, the ad hoc office promote transparency, empower citizens, fight of state attorneys in the justice ministry, had a corruption, and harness new technologies that dwindling budget and had gradually lost the would strengthen governance. charisma and efficacy that had once attracted public support. Alan García, president of Peru THE CHALLENGE from 2006 to 2011, set up another unit of state As they contemplated how best to clean up attorneys specialized in corruption crimes to government, the people who were leading reform represent the state in cases involving the diagnosed the reasons why Peru’s anticorruption administration of his predecessor, President subsystem had weakened. Alejandro Toledo. But that change was no match The interim government that took power for the problems that had developed. after Fujimori’s departure in 2000 had set up a High staff turnover limited capacity across special system to investigate corruption allegations. The president of Lima’s Superior state institutions. Jaris Mujica, an anthropologist Court had designated six judges to hear the cases, who later worked to reform the anticorruption and the public prosecutor’s office (Ministerio state attorney’s office, said: “Administrative Público) had created a six-person unit of special service contracts do not provide a career ladder, anticorruption prosecutors. Those judges and and they have to be renewed every three to six prosecutors “were young and untainted, and they months. As a result, well-qualified people search had all the political support to go forward with for other jobs that give them more job security.” the investigation,” said Ugaz, the criminal lawyer Threats of possible physical harm and other who helped create the system. A pivotal element forms of retribution also made it difficult to of the strategy was Ugaz’s own team of state retain talented staff to fight corruption. attorneys, known as the Procuraduría Ad Hoc. Part Political changes compounded the of the Ministry of Justice and Human Rights, this disruption. “When a ministerial change occurred, unit was created to probe the initial allegations the incoming minister would often change other against Montesinos and his network. people within the ministry, and it was common

Blair Cameron Innovations for Successful Societies

for the people who worked under the outgoing Global Corruption Barometer, the Peruvian managers to also resign,” Mujica said. public saw the courts as the most corrupt public Limited expertise further hampered the institution in the country. The barometer used prosecution of corrupt officials. Hector national surveys to measure citizen perceptions Maldonado of the comptroller’s office, the and assigned each institution a score of 1 (not autonomous institution that audited public corrupt) to 5 (very corrupt). In Peru, the judiciary spending, said prosecutors often had difficulty scored 4.4, which compared unfavorably with the deciphering the reports that the auditors sent Latin American average of 3.8 and the world them. “The public prosecutors were not trained average of 3.3 for judicial institutions. to handle public management of resources and Susana Silva, whom Humala appointed as finances the way the auditors were,” he said. coordinator of Peru’s anticorruption commission, “Our reports were not user-friendly. We gave the said a lack of permanent positions within the prosecutors too much sophisticated information judiciary and the public prosecutor’s office was a that was difficult for them to digest, and critical issue. “It is a big problem that judges and sometimes they had to hire external consultants public prosecutors are rarely given permanent to understand the reports.” Better positions,” she said. “I do not want to say that a communication also would have helped because temporary public prosecutor is synonymous with the prosecutors had no way to contact the corruption . . . but to guarantee the independence auditors for assistance in understanding the of a prosecutor or judge, [a prosecutor or judge] reports they received. has to have a permanent position.” Additional capacity challenges arose from a Finally, Peru’s 1993 constitution complicated 2004 reform of the criminal procedure code that efforts to build corruption cases against senior required new ways of working (text box 1). The officials because it provided certain protections code was implemented slowly across Peru, region for congress members, ministers, heads of by region, but in 2010, President García decided autonomous state institutions, and high-ranking to apply it in all corruption cases nationwide, prosecutors and judges. Prosecutors had to get beginning in January 2011. “The implementation congressional approval to investigate those of the new code meant that small-scale- officials while still in office or during the five corruption crimes, such as bribes paid to police years after they left their posts. Only the highest- for traffic offenses, had to be processed by the ranked prosecutors could investigate such cases; same prosecutors investigating complex cases,” the investigations required endorsement by the said Fany Quispe, who led one of three teams of public prosecutor for the nation; and the only anticorruption prosecutors in Lima at the time. venue for such cases was the Supreme Court. Before 2011, general prosecutors, not members Meeting all of the prerequisites for investigations of the specialized prosecution teams, had took great amounts of time and made it more investigated such petty corruption cases. Quispe difficult to obtain the evidence needed for said the change created an “overflow” of cases, convictions. making it harder to do what she considered the Major reforms to the system required the most important part of her job: investigating serious corruption. The specialized prosecutors support of weak political parties operating in a instead had to devote most of their time to the divided legislature. Winning such backing was operational work necessary to clear simple cases. especially challenging because personalities rather A further challenge arose from the influence than political platforms and policies often of corruption networks within the judiciary itself. dictated the success or failure of legislative According to Transparency International’s 2010 initiatives.

Blair Cameron Innovations for Successful Societies

FRAMING A RESPONSE state attorney specialized in corruption cases to After taking office in late July 2011, Humala each judicial district in the country, and reporting put transparency and the fight against corruption the outcomes of corruption trials publicly. at the top of his administration’s agenda by Although the judiciary and the comptroller’s strengthening the national high-level office participated in discussions to create the anticorruption commission (Comisión de Alto Nivel action plan, the OGP working group did not Anticorrupción), and by announcing Peru’s formally adopt the reforms that Khoury, San intention to join the OGP (text box 2). Martín, and Peláez were planning. The president viewed the anticorruption The energy required to implement reform commission as a vehicle to generate action and came from two groups: key Humala appointees in improve communication and coordination across the justice ministry and the three men behind the government. He and the prime minister, a May 2011 Declaration—Khoury, San Martín, and presidential appointee, turned to Silva to Peláez. coordinate the commission. At the time, Silva was At the justice ministry, the plan was to move secretary-general of the Lima municipal council all anticorruption state attorneys into a single, and unsure about whether to take the position. specialized unit, and then to build the capacity of “It was a very weak organization and had no that office to support the public prosecutors’ presence on the political agenda,” she said. “But investigations and argue for state reparations. the fight against corruption was one of the While the justice ministry introduced its flagship themes of the incoming administration, reforms, the judiciary, the public prosecutor’s and they had a reputation for being honest people office, and the comptroller’s office devised their . . . so I took the job.” own action plan. In mid-July 2012, about a year Silva expanded the commission by bringing after Khoury, San Martín, and Peláez had released in a broader range of officials and others who their joint declaration, the trio announced a joint played roles in anticorruption efforts (figure 1). policy called the Specific Tripartite Agreement for Under her watch, the number of representatives Institutional Cooperation. In the agreement they on the commission nearly doubled to 23 from 12. pledged to “implement concrete actions for joint The members included representatives of regional efforts to improve efficiency and efficacy in and municipal governments, Congress, and the corruption cases of public officials, with special heads of autonomous state institutions, such as emphasis on serious crimes, complex crimes, and the president of the judiciary, the public crimes with national repercussions.”2 prosecutor, and the comptroller general, as well as The agreement outlined specific tasks for five civil society representatives and three private- each institution. The comptroller’s office would sector representatives. The prime minister and the establish a forensic auditing unit to improve minister of justice represented the executive side. detection of corruption. The public prosecutor’s The commission, which met every two months, office would designate anticorruption prosecutors became a focal point for identifying problems and who specialized in serious, complex crimes with discussing solutions. national repercussions. The public prosecutor’s Meanwhile, the office developing the office and comptroller’s office would also country’s Open Government Partnership action coordinate to establish new protocols for joint plan consulted civic groups and officials about action by the two organizations. Meanwhile, the priorities. The public commitments made judiciary would institute a “specific criminal included improving the performance of the system” for hearing the cases. specialized corruption units in the public Khoury, San Martín, and Peláez decided that prosecutor’s office and the judiciary, assigning a the new anticorruption system should have the

Blair Cameron Innovations for Successful Societies

capacity to investigate and prosecute serious and corruption cases that originated from reports complex corruption cases of national importance, provided by the auditors at the comptroller leaving smaller matters to the regional general’s office,” Quispe said (figure 2). prosecutors and judges already in place. Serious The comptroller’s office (Contraloría General corruption cases already underway would de la Republica), was responsible for the auditing of continue in the existing anticorruption system public spending. “When the Contraloría detects under the Superior Court in Lima. irregularities that constitute crimes, it has the obligation to denounce them” to the public GETTING DOWN TO WORK prosecutor, said Alfonso González, who worked Transforming these plans into real practices for the office. Like the judiciary and the public required several steps, some of them much more prosecutor’s office, the Contraloría was an difficult than others. autonomous institution, structurally independent of partisan political control. Clarifying roles An on-call anticorruption prosecutor would Under the tripartite agreement, the receive an initial report from the comptroller’s movement of a corruption case through the office and then conduct a preliminary system was supposed to follow a clear path. “The investigation. If the on-call prosecutor found original idea was that the [new unit of reasonable grounds, a formal investigation began. prosecutors] would investigate complex In cases of large-scale corruption, the national

Blair Cameron Innovations for Successful Societies

coordinator of anticorruption prosecutors The executive council of the judiciary—San evaluated the case to determine whether it was Martín, four other judges, and a representative serious enough, complex enough, and important from the bar association—expanded the enough to merit investigation by the new unit (the jurisdiction of the National Criminal Chamber to Fiscalía Supraprovincial Corporativa Especializada en include corruption cases. San Martín said the idea Delitos de Corrupción, or national anticorruption triggered some initial resistance because of prosecutors). If not, the anticorruption public concerns about the workload. “There was a fear prosecutor in the region where the crime was that there was going to be an overflow in the committed would conduct the investigation. In a system,” he said. He said people told him that region with no anticorruption prosecutor, the “the system was covering too much and that new general criminal prosecutor for the region would cases would hinder the cases the chamber already investigate. had.” Others said that diverting important cases to a separate national chamber was detrimental Expanding the jurisdiction of the anticorruption chamber because it would ignore the territorial jurisdiction The tripartite agreement Khoury, San of the regional Superior Courts. However, strict Martín, and Peláez had put in place required that adherence to restrictions on the seriousness, the public prosecutor’s office coordinate with the complexity, and importance of cases brought to judiciary to create parallel units of prosecutors the court helped minimize such opposition. and judges specifically for handling serious and Further, San Martín stressed that each judge complex corruption cases. could review the case to decide whether it really At the same time that Public Prosecutor fell under his or her jurisdiction. Peláez was establishing the national A separate anticorruption chamber within anticorruption public prosecutors, San Martín, the Superior Court of Lima, which heard cases related to the Fujimori-Montesinos network as president of the judiciary, proposed that the well as subsequent corruption cases that fell National Criminal Chamber become the judicial under its regional jurisdiction, continued to wing of the new system. The chamber already operate. “They already had the infrastructure, and existed and had jurisdiction to hear national-level the system was already implemented,” San Martín crimes related to terrorism and organized crime. said. “So we just let it continue.” Going forward, San Martín asked Peru’s Congress to turn the however, all of the more serious cases were National Criminal Chamber into a court. “The investigated by the national anticorruption court is a permanent system that is not subject to prosecutors and heard by the National Criminal the decisions of the president or the executive Chamber. council of the judiciary,” he said; but a chamber

could have its jurisdiction changed at any time by Appointing honest judges and prosecutors the executive council of the judiciary. San Aware that corruption was entrenched Martín’s proposal failed to win support. As the within both the judiciary and the public presiding judge who had sentenced Fujimori to prosecutor’s office, San Martín and Peláez, the 25 years in prison, San Martín was unpopular head of the public prosecutor’s office, had to with some politicians. Congress also blocked San choose judges and prosecutors who had Martín’s attempts to introduce other reforms for reputations for honesty. tackling corruption within the regional courts, The National Council of Magistrates, a including establishment of supervisory separate autonomous state institution, was committees to oversee the courts most at risk of responsible for certifying the judges and corruption. prosecutors that San Martín and Peláez could

Blair Cameron Innovations for Successful Societies

choose from. The council had seven members: two specialized teams to staff the new national one elected by Supreme Court judges, one by unit. Each team had one prosecutor, three high-ranking prosecutors, one by the rectors of all deputies, three assistants, and one administrative of the public universities, one by the rectors of all staffer. This new national unit was far smaller of the private universities, one by members of the than the Lima anticorruption unit, which had bar association, and two by members of 31 of originally been set up to investigate the Fujimori- Peru’s other professional associations. The Montesinos network and which in 2012 had three council evaluated and ratified each judge and teams, each composed of 5 prosecutors plus 15 attorney every seven years. deputies, assistants, and administrative staff. The members of the executive council of the Quispe, one of the two prosecutors chosen for judiciary collected information on candidates’ the new national unit, said the decision to keep careers in the judiciary and consulted other judges the unit small was a setback but noted, “the before making appointments to the National concession we got was that we would start with a Criminal Chamber. “First, we checked whether caseload of zero—we would deal with new cases the person being appointed had any disciplinary only.” measures filed against them,” San Martín said. Most of the cases that reached the national “Then we looked at their knowledge and unit came from regional anticorruption expertise and any recommendations from other prosecutors or other prosecutors in the judges.” San Martín asked many of his most provinces. A smaller number of cases came trusted colleagues within the judicial system for directly from the public prosecutor. César their recommendations. Zanabria, who became coordinator of the Meanwhile, Public Prosecutor Peláez picked anticorruption prosecutors for the entire country,

Blair Cameron Innovations for Successful Societies

said the national unit investigated about a quarter with investigations, and argue for reparations to of the cases proposed to it; the remainder were be paid. On Eguiguren’s recommendation, returned to the regional prosecutors for Humala appointed Julio Arbizu, who had worked investigation. under Ugaz in the earlier corruption prosecutions, As additional serious corruption cases rolled as the unit’s head. in, the prosecutors in the national unit struggled Jiménez also turned to a former colleague, to keep up. “There were a great number of cases, Jan-Michael Simon, for help in designing the new and then we had the case of La Centralita, which unit and building investigative capacity. Simon, a required a whole new team to be created,” said criminal justice researcher who had long worked Quispe. The Centralita case centered on César on justice issues in the region, was a project Álvarez—governor of the region of Áncash, who adviser for the German Corporation for was charged with bribery, collusion, and money International Cooperation, or GIZ, which had laundering—and 60 other people who were supported the introduction of Peru’s new criminal allegedly involved, including regional public procedure code. He persuaded the GIZ to shift prosecutors and President Humala’s campaign its focus to anticorruption reform. manager. Simon, Jiménez, and Arbizu together By 2014, the public prosecutor had to established a new analysis unit, known informally reassign more prosecutors working at the as the anticorruption observatory. Knowing provincial level to new teams on the national unit, where corruption occurred most often and as well as more deputy prosecutors and assistants. identifying especially vulnerable functions or offices would help them improve the state’s Strengthening the anticorruption state attorney’s office response to corruption. They chose three social In parallel with the changes in the judiciary scientists and one lawyer to staff the operation. and the public prosecutor’s office, the justice Arbizu turned to the analysis unit to create a ministry began to reform the state office of better case allocation system. The unit developed anticorruption attorneys, which represented the a classification system so that staff could rank state in corruption cases that carried the prospect cases’ levels of complexity and importance based of civil damages. The capacity of this office had on 56 variables. Arbizu set up protocols to assign eroded since 2000, when it began as an ad hoc the most-capable state attorneys to the type A office under Ugaz. In 2011, the reform team cases (the most important) and to give them found that the office was in a state of disarray, smaller caseloads. unaware of exactly of how many cases it handled. The classification system also helped the unit The new justice minister, Francisco pinpoint the sectors and regions most prone to Eguiguren, recruited Juan Jiménez to be his vice corrupt administration. The statistics enabled minister. Both knew the ministry well. Jiménez Arbizu to allocate his personnel across regions. had been vice minister during the transitional “We created 11 macro-regional state attorneys post-Fujimori government, and Eguiguren had plus a team of lawyers that moved from one place served as an external adviser to the ministry. to another in order to cover the entire macro- They quickly decided it was unnecessary to region,” Arbizu said. have two separate groups of state attorneys The anticorruption state attorney’s office assisting in anticorruption investigations. They publicized its work. If someone did not pay merged the unit of state attorneys specialized in damages assessed by a judge after a verdict, the corruption crimes and the team of ad hoc state attorneys seized property to collect the money attorneys into one unit that would represent the and invited the press to observe. After an early state in all corruption cases, assist prosecutors seizure at the home of a high-profile former

Blair Cameron Innovations for Successful Societies politician, people who had not paid began to Additional workshops, supported by the honor their obligations. Arbizu said, “The next GIZ, focused on government agencies’ internal day, 25 people were at my office saying there was functions and on public-contract law. Learning no need for us to go and seize their property; they about those topics equipped the prosecutors to were willing to pay the damages before any other work more closely with the auditors, who measures were taken.” scrutinized public contracts and public administration practices every day, and to better Improving Capacity understand the auditors’ reports. The comptroller’s office, the public prosecutors, and the judiciary issued new Investigating high-ranking public officials guidelines that specified their respective roles in In 2011, the public prosecutor designated an the handling of corruption cases. The new office to handle investigations of high-ranking protocols immediately improved communication officials who enjoyed pre-investigation privileges between the comptroller’s office and the under Peru’s constitution. The office was called prosecutors. “Before the tripartite agreement, the the Supreme Public Prosecutor’s Office for auditors had no idea what happened to their Administrative Cases (Fiscalía Suprema en lo reports,” Quispe said. “There was no Contencioso Administrativo). In 2014, when the unit communication. Now, they know that once they began investigating corruption cases, the public send their reports, we are going to investigate. prosecutor appointed Quispe to be one of the And if information is missing, we can request it.” prosecutors on the new team. The comptroller’s office also changed its Having a separate unit to handle the highest- operating procedures to make prosecutors’ jobs ranking public officials complicated the task of slightly easier. “We changed the language we used investigating corruption networks. When a so that the public prosecutors could understand prosecutor began investigating a case, it was not our reports,” said Maldonado. “And instead of always immediately clear how many people were sending them a 70-page report, we sent them an involved in the corruption or whether any of abridged three-page report that only included the those involved had constitutional privileges. “In most relevant information for them.” those cases,” said Quispe, “the law states they As part of the tripartite agreement, the two should all be tried together at the highest forum.” national anticorruption prosecutors, Quispe and If a case focused on a high-level official, Walther Delgado, along with their deputies and Quispe said, the long process required to launch other anticorruption prosecutors, attended joint an investigation could delay action and enable training courses with the comptroller’s office and defendants to leave the country. “There is a large the judiciary. The courses took place at the group of people who enjoy pre-trial privileges,” comptroller’s training center, and the attendees she said. “For those people we have to wait for met twice or three times weekly. the public prosecutor’s preliminary investigation The courses were the first opportunity the before we can act. As the saying goes, time passes prosecutors, auditors, and judges had to interact and they flee.” personally. “The tripartite agreement changed the Investigating officials who held privileged traditional form of work between the public positions was an “enormous challenge” for the prosecutor’s office and the comptroller’s office,” public prosecutor’s office, according to Quispe. Quispe said. “Before the tripartite agreement, we “It all takes time, so it may take years before a never met with the auditors. Afterward, we public official with privileges is duly processed,” developed personal relationships with them.” she said. “Sometimes during that period of time, we lose evidence or we lose witnesses. For

Blair Cameron Innovations for Successful Societies

Box 2. The Open Government Partnership in Peru Shortly after he was sworn in, President Humala indicated his interest in joining the Open Government Partnership (OGP). In conjunction with the Secretariat of Public Management—a part of the cabinet office—the Ministry of Foreign Affairs led a group of public entities that were in charge of designing an action plan to join the OGP. Mariana Llona, former head of the secretariat, said the partnership “was an alliance between the executive and civil society but also with the participation of autonomous institutions and certain ministries.” Those autonomous institutions that participated were the ombudsman’s office, the anticorruption commission, the comptroller general’s office, and the judiciary—but not the attorney general’s office. “We invited all the different state powers to be part of the partnership, but only those with political will participated,” said Eduardo Pezo, who was also with the secretariat. “The attorney general’s office was not interested.” • After a five-month consultation process, the secretariat presented Peru’s action plan at the OGP annual conference in Brazil in April 2012. Three of the commitments in the action plan involved the anticorruption system as follows. • Disseminate information to the public about the outcome of investigations of administrative offenses related to corruption. • Improve processes, performance, and timely publicity in the specialized corruption units that existed in the public prosecutor’s office and the judiciary. • Create an anticorruption state attorney for each judicial district in the country. According to Pezo, “The commitments were not implemented in their totality.” The judiciary made some progress in publicizing sentences, but most corruption sentences were still not accessible to the general public. Despite being included in the OGP commitments, the public prosecutor’s office was never represented at OGP meetings, and therefore “no concrete commitment was made,” said Pezo. The Ministry of Justice and Human Rights did not have sufficient resources to finance the placement of anticorruption state attorneys in every judicial district and opted instead to implement macro-regional anticorruption attorneys who would cover several districts at once. Pezo recalled that the commission set up to ensure follow-through of commitments had “about 10 meetings with all 15 representatives, as well as some bilateral meetings.” But, according to Llona, “the last meeting was in May 2014 because of personnel changes and because the civil society representatives left the commission.” The civil society representatives had left because of a conflict with the executive about the creation of an independent transparency authority to facilitate public access to information. The transparency authority would ensure timely access to information from government ministries, local governments, and autonomous institutions. Several other OGP member countries had created similar agencies. “The commission members decided, by consensus, that the transparency authority would be a commitment,” said Llona. But the prime minister declined to support the proposal. Because of opposition to the transparency authority from the highest levels within the Peruvian government, two subsequent prime ministers also refused to sign off on the agreement. Llona explained the concern at the top of government: “If we say to public officials that they could receive a sanction for not releasing information, then they might release sensitive information. For that reason, the commitment was not negotiable.” In July 2015, the secretariat published a new plan—approved by the prime minister—that included commitments different from those originally agreed upon by the commission. The plan was immediately rejected by the civil society groups that had earlier welcomed the OGP initiative. “We need to work on rebuilding trust now,” said Llona. “It is going to be a great challenge to rebuild the partnership.”

Blair Cameron Innovations for Successful Societies

example, after a certain period of time, we can’t judge’s appointment permanent and not subject request communication records because the to change by the president of the court, according telephone communication company does not to Nayko Coronado. Coronado was one of three keep information for a long period of time.” judges with permanent positions on the anticorruption chamber of the Lima court. “The OVERCOMING OBSTACLES other 12 can be changed to any other position by Those who wanted to build lasting reform the judicial administration,” she said. The faced hurdles created by the constant rotation and National Magistrates Council was also authorized reassignment of personnel as well as the changing to give prosecutors permanent positions. But as composition of the influential National of mid-2015, only 2 of the 33 prosecutors in the Magistrates Council. national anticorruption units had permanent During the first three years of his presidency, roles. Humala replaced his prime minister six times and The focus of those interested in his justice minister five times. Eguiguren, anticorruption reform later shifted to the Humala’s first minister of justice, lasted just four council’s own elections, however, as concerns months before Humala decided to replace him grew about possible outside manipulation of the and promote Jiménez to the role. After seven group’s membership. “In appearance, the election months as the minister of justice, Jiménez became of members of the National Magistrates Council prime minister. Jiménez said he was able to appears very democratic,” said Rivera, of the continue supporting the anticorruption state Legal Defense Institute. “But unfortunately, there attorneys as prime minister but not with the same have been too many people elected [to the intensity as when he was part of the Ministry of council] who should never have been there.” Justice and Human Rights. Instead, he focused on In June 2015, after the professional instituting preventive anticorruption policies with associations of Peru voted for their two the anticorruption commission. Jiménez worked representatives on the seven-member council, the on those reforms for 14 months before Humala Legal Defense Institute and Proética—the sent him to Washington to be Peru’s ambassador Peruvian chapter of Transparency International— to the Organization of American States. raised concerns about the election process. Albán, Judges and prosecutors faced similar former ombudsman and interior minister who in problems. Although they had security of tenure as 2015 became head of Proética, said the two new long as they obeyed the rules, they often found council members had been elected by an indirect themselves shifted from one court or chamber to vote and that just 10 of the 41 professional another. Every 12 months, the executive council associations recognized by the electoral authority of the judiciary could choose to move a judge to a voted. different chamber or role within the court. And Rivera said the composition of the council every two years, the highest-ranking judges was changing, adding that the shift posed a elected a new president to preside over the potential threat to the independence of the executive council. Prosecutors, on the other hand, judiciary. “We are convinced that this has become could be reassigned to different roles or units at a problem more recently,” he said. “Earlier, no any time. one was interested in the council. Little by little, Following implementation of the new people have come to realize that it is a very criminal procedure code, the National Magistrates powerful institution. Its members appoint judges Council, the body charged with reviewing officers and prosecutors; they can choose whether or not of the court and appointing judges and to ratify judges; and they can remove judges and prosecutors, gained the authority to make a attorneys. . . . We do not have any documents to

Blair Cameron Innovations for Successful Societies

prove it, but we believe there are political factions analyzing more than 200 telephone calls, in Peru that are trying to control the council. It is analyzing banking information, etcetera,” Quispe the ideal way to control the judiciary.” said. “You could never investigate the case in a Albán had similar concerns. “The new system where you also had to investigate a huge composition of the National Magistrates Council number of small cases.” is very worrisome,” he said. “The way the new Adoption of the new criminal procedure members were elected and the questionable code also helped reduce delay. Quispe said that backgrounds of some have created a fear that “after the implementation of the new criminal some council members may be linked to procedural code, the public prosecutor sees a corruption networks.” proceeding from the very beginning until its ruling” instead of handing the case off to an ASSESSING RESULTS investigating judge or another prosecutor. As a As of mid-2015, about three years after result, she suggested, “the public prosecutor is reform started, it was still difficult to assess the more invested in a case.” The new code also success of new practices and institutions in called for deadlines that sped up the process of improving enforcement or deterring corrupt judicial hearings and the time taken to deliver practices. The national anticorruption prosecutors verdicts. had 23 cases in progress. According to Zanabria, Silva, former coordinator of the the coordinator for all anticorruption prosecutors anticorruption commission, suggested that public across the country, the first case the new unit support for the system had increased because of investigated was in oral hearings before a judge. the reputations of individual judges, attorneys, The unit had announced formal charges in 2 and prosecutors working on corruption cases. other cases, and 20 cases were under preliminary “The people working today in the anticorruption investigation. system are top-level people, and they are very Those working within the system remained committed to their jobs,” she said. optimistic for its success. In particular, they But the news was not all good. Despite pointed to (1) the importance of bypassing strong progress in 2011 and 2012, the reliability prosecutors and judges at the regional level by of top-level support was uncertain. “Humala had having a national system to investigate and hear to cover his back,” said Jan-Michael Simon, a the most-important cases, (2) the improved criminal justice specialist at the Max Planck cooperation between the institutions involved, Institute for Foreign and International Criminal and (3) the increased capacity of the specialized Law who had long worked on justice issues in the prosecutors. region. “Every political leader in Peru has to fund The efficiency and effectiveness of their campaigns . . . and the people who pay for investigations improved. Grading cases by the campaign are going to ask for something in seriousness and complexity helped reduce the return.” chance that prosecutors would find all their time At the end of 2012, President Humala diverted to small cases that did not address the backed away from his enthusiasm for greater real causes of corruption. The first case the transparency when he issued a decree that made national anticorruption prosecutors investigated all national-security information a state secret. involved senior officials of former president Plus, from 2013 until mid-2015, the executive García’s administration who were accused of refused to approve a second Open Government receiving money for organizing presidential Partnership Action Plan. Those actions “gave the pardons for imprisoned drug traffickers. The case impression to civil society that the government “involved working with whistle-blowers, would not walk the talk,” Silva said. In January

Blair Cameron Innovations for Successful Societies

2015, Silva resigned her post at the anticorruption A corruption scandal rocked public commission because of weakened support by the confidence in December 2014, when the public president and his ministers for anticorruption prosecutor was ousted from his position and initiatives, and the commission stopped meeting investigated for corruption. The incident helped for several months. fuel public pessimism, but the ouster was also a Even with the appointment of staff positive step toward removing corrupt elements members with excellent reputations, concern from within the judicial system. persisted about conflicts of interest. Arbizu In mid-2015, there was a sign that conditions worried that personal connections between would improve. The National Magistrates Council politicians and public prosecutors had made it appointed Pablo Sánchez, a well-regarded lawyer difficult to bring the country’s highest officials, who specialized in corruption cases, as public including presidents, to court. prosecutor. Sánchez had a reputation for honesty Avelino Guillén, one of the lead prosecutors and was immediately chosen to be president of involved in Fujimori’s prosecution, said the anticorruption commission. “The election of prosecutors across the country regularly felt Sánchez created a big opportunity,” Albán said, political pressure when dealing with corruption adding “but it will take time.” cases and that they needed stronger political support. “It is a big problem when there is a lack REFLECTIONS of political will to fight corruption,” he said From 2011 to mid-2015, a few dedicated “How am I going to investigate and condemn a people had strengthened Peru’s capacity to minister? He has the power to cause a lot of prosecute public officials for acts of corruption. problems for me. In these cases, the prosecutors Carlos Rivera, a lawyer at the Legal Defense might look for any small processing error so that Institute, stressed the improvement that had the case does not advance.” occurred. “At the moment, we have a lot of Levels of public access to findings and hope,” he said. “There is a fantastic group of decisions in corruption cases remained low. “The public prosecutors and another great group of majority of sentences for corruption are not judges who are willing to fight corruption.” published despite the existence of a system to Rivera underscored the importance of that publish them on the official page of the achievement: “When no public prosecutors are judiciary,” said Coronado, a Lima anticorruption interested in tackling corruption, even the most judge. She added that many judges faced time spectacular anticorruption plan will fail.” constraints because of the heavy burden of cases Further progress would not be easy, on each judge and lack of familiarity with the however. Many other issues competed for online system. President Humala’s attention, and in 2015, the Peruvians continued to have low regard for president’s office was less engaged in the legal institutions. “People feel there are no judicial anticorruption strategy than it had been in 2011. guarantees,” said Gladys Andrade, a lawyer who In theory, civil society engagement could ran Solidarity Forum, a Lima-based help sustain political support and play a role in nongovernmental organization focused on human countering backlash from the regional corruption rights and anticorruption issues. Andrade said she networks. But key reformers worried that citizen also worried that corruption networks still attention had lagged after a surge of interest in wielded influence within the independent legal the early 2000s. “A big problem is that we need institutions. “The judiciary is captured by political civil society to react and to become interested and private interests, and the public prosecutor’s again,” said Walter Albán, head of Proética, the office is captured in a similar way,” she said. Peruvian chapter of Transparency International.

Blair Cameron Innovations for Successful Societies

“There was a great mobilization of civil society Finding the right people and keeping them when [President Alberto] Fujimori fell, but since on the job were common refrains among those then, the government has failed to fulfill its who had led the reforms. “The right person in the promises to fight corruption. The biggest damage right position is the only thing that can make a done to the country is that all this corruption has difference, and this will be the case as long as we decreased the morale of the people.” don’t have strong institutions in Peru,” said Juan Avelino Guillén, a former anticorruption Jiménez, a former prime minister. “And even if public prosecutor, said citizens’ discouragement we did have strong institutions, if you have the had serious implications for public administration wrong person running them, they could be across the country. “When a public official ruined.” embezzles funds, the public is indifferent,” he Nonetheless, key reform leaders were said. “They do not feel that corruption affects optimistic. “This is a dream come true,” said them. If you ask someone why he or she voted Sergio Salas, president of the court of Lima in for a public official known to be corrupt, they tell 2001 who played a major role in setting up the you ‘Everyone is corrupt, so I voted for the one special chambers to prosecute the network of that built a highway.’” As a result of public Fujimori and his coconspirator Vladimiro indifference, Guillén concluded, “public officials Montesinos, who was de facto head of the do not feel obligated to fight corruption.” National Intelligence Service. “Before 2000, our There was also a risk that corruption situation was very precarious . . . What we have networks could capture elements of the now is what we always hoped we could have: a anticorruption system. For example, Julio Arbizu, great national area specialized in corruption, in who became head anticorruption state attorney in terms of state judicial policy. At the moment, the 2011, wanted to see steps taken to ensure that anticorruption system is stronger than it has ever anticorruption state attorneys did not become been.” partisan tools. “It is important that the Salas said top-level support was crucial to the anticorruption state attorney’s office should not success of anticorruption prosecutors and judges. become a weapon that is used by every “The biggest risk lies in neglecting the system,” government administration against the prior he said government administration,” he said.

References 1“Más de 10 Mil Funcionarios Involucrados en Irregularidades durante el Gobierno Aprista.” El Comercio, August 31, 2011; http://elcomercio.pe/politica/gobierno/mas-10-mil-funcionarios-involucrados-corrupcion-gobierno-aprista- noticia-1262900. 2“Convenio Específico Tripartito de Cooperación Interinstitucional entre el Poder Judicial, el Ministerio Público, y la Contraloría General de la República.” César San Martín Castro, José Antonio Peláez Bardales, Fuad Khoury Zarzar. July 17, 2012; http://scc.pj.gob.pe/wps/wcm/connect/e07861004d8896be8dfcef85f1a0a28f/21.+Convenio+Espec%C3%ADfico+T ripartito+PJ-MP-Contralor%C3%ADa.pdf?MOD=AJPERES&CACHEID=e07861004d8896be8dfcef85f1a0a28f.

Innovations for Successful Societies makes its case studies and other publications available to all at no cost, under the guidelines of the Terms of Use listed below. The ISS Web repository is intended to serve as an idea bank, enabling practitioners and scholars to evaluate the pros and cons of different reform strategies and weigh the effects of context. ISS welcomes readers’ feedback, including suggestions of additional topics and questions to be considered, corrections, and how case studies are being used: [email protected]. Terms of Use Before using any materials downloaded from the Innovations for Successful Societies website, users must read and accept the terms on which we make these items available. The terms constitute a legal agreement between any person who seeks to use information available at successfulsocieties.princeton.edu and Princeton University. In downloading or otherwise employing this information, users indicate that: a. They understand that the materials downloaded from the website are protected under United States Copyright Law (Title 17, United States Code). b. They will use the material only for educational, scholarly, and other noncommercial purposes. c. They will not sell, transfer, assign, license, lease, or otherwise convey any portion of this information to any third party. Republication or display on a third party’s website requires the express written permission of the Princeton University Innovations for Successful Societies program or the Princeton University Library. d. They understand that the quotes used in the case study reflect the interviewees’ personal points of view. Although all efforts have been made to ensure the accuracy of the information collected, Princeton University does not warrant the accuracy, completeness, timeliness, or other characteristics of any material available online. e. They acknowledge that the content and/or format of the archive and the site may be revised, updated or otherwise modified from time to time. f. They accept that access to and use of the archive are at their own risk. They shall not hold Princeton University liable for any loss or damages resulting from the use of information in the archive. Princeton University assumes no liability for any errors or omissions with respect to the functioning of the archive. g. In all publications, presentations or other communications that incorporate or otherwise rely on information from this archive, they will acknowledge that such information was obtained through the Innovations for Successful Societies website. Our status (and that of any identified contributors) as the authors of material must always be acknowledged and a full credit given as follows: Author(s) or Editor(s) if listed, Full title, Year of publication, Innovations for Successful Societies, Princeton University, http://successfulsocieties.princeton.edu/

Innovations for Successful Societies (ISS) is a joint program of Princeton University’s Woodrow Wilson School of Public & International Affairs and the Bobst Center for Peace & Justice. The Woodrow Wilson School prepares students for careers in public service and supports scholarly research on policy and governance. The mission of the Bobst Center for Peace & Justice is to advance the cause of peace and justice through mutual understanding and respect for all ethnic traditions and religious faiths, both within countries and across national borders.