Apropósito de la modificación constitucional de la Ley N° 30650.
The Political Constitution of the State and the Penal Code recognize the statute of limitations as one of the assumptions of extinction of the criminal action. In other words, the statute of limitations limits the punitive power of the State, since it extinguishes the possibility of investigating a criminal act and, with it, the responsibility of the alleged perpetrator or perpetrators[1].
At the constitutional level, this institution of extinction of criminal action was recently modified by Law No. 30650. Specifically, the fourth paragraph of Article 41° of the Political Constitution was modified, declaring that the criminal action against corruption crimes, in the most serious cases, is imprescriptible.
Previously, Art. 41° only described the special rule of duplication of the statute of limitations for corruption offenses affecting the State’s patrimony. The new amendment states that the special rule of the double statute of limitations shall apply to all corruption crimes, regardless of whether or not they affect the State’s patrimony.
Following this modification, the duplicity of the statute of limitations will apply to the crime of embezzlement (Art. 387° of the PC), aggravated collusion (Art. 384° of the PC) or other crimes that affect the State’s patrimony according to the development of Plenary Agreement Nº01-2010/CJ-116[2]. Likewise, it will be applicable to the crime of bribery, influence peddling and others that by their nature do not directly affect the patrimony of the State.
Also, the double statute of limitations will be applicable to officials, public servants and individuals involved in a corruption crime. This modification is contrary to the jurisprudential development established by Plenary Agreement Nº02-2011/CJ-116[3], which stated that the rule of duplicity of the statute of limitations only applies to public officials and/or servants and not to those who do not hold such positions.
On the other hand, this new modification is contrary to Article 80 in fine of the Criminal Code, which states that “in case of crimes committed by public officials and public servants against the patrimony of the State or the agencies supported by it, the statute of limitations is doubled”[4]. Therefore, for the application of this reform, it should be expected that the Congress of the Republic modifies Article 80 of the Criminal Code and the norms related to the statute of limitations for corruption crimes.
Finally, the Congress must incorporate in the Penal Code the crimes of corruption that are not subject to the statute of limitations for criminal prosecution. This is due to the fact that the constitutional amendment includes the non-applicability of statutes of limitations for the “most serious” corruption crimes. This fact generates some doubt for its interpretation as it has been traditionally understood hat the most serious corruption crimes are those that affect the patrimony of the State.
Therefore, it is necessary to establish interpretation criteria to deduce which corruption offenses have the quality of being “more serious”. There could be a problem of interpretation in the crime of active bribery, since this crime by its nature, is considered as one of breach of duty and not of patrimonial nature to the detriment of the State. However, it seems that the spirit of the norm intends to include all corruption offenses.
Likewise, it could be questioned whether a small bribery crime (e.g. the cab driver who gives S/. 20 soles to a police officer to avoid a fine for an infraction) will have the same gravity as a large scale bribery perpetrated by an organized structure within the State. Observations and questions that will surely be resolved with the modification of the Criminal Code.
1]Grounds No. 4 and 5 of Constitutional Court Ruling No. 02407-2011-PHC/TC dated August 10, 2011.
2]Plenary Agreement Nº1-2010/CJ-116 of the VI Jurisdictional Plenary of the Permanent and Transitory Criminal Chambers of the Supreme Court of Justice of the Republic dated November 16, 2010.
3]Plenary Agreement Nº2-2011/CJ-116 of the VII Plenary Jurisdictional Court of the Permanent and Transitory Criminal Chambers of the Supreme Court of Justice of the Republic dated December 6, 2011.
4] The special rule was introduced in Article 80 of the Criminal Code on May 26, 1994, by Law 26314.
