The Ad Hoc Public Prosecutor’s Office for the Lava Jato case in the framework of its attributions established in Legislative Decree No. 1068 – Law of Legal Defense of the State and art. 40° of its Regulations, Supreme Decree No. 017-2008-JUS which regulates that “[t]he Specialized Public Prosecutors exercise the legal defense of the State…”, requested the actual coercive measure of the restraining order against assets and/or registrable shares of the company Odebrecht.
Although the questioning of this request resulted in the removal of the Ad Hoc Prosecutor’s Office, it should be noted that the Ad Hoc Prosecutor’s Office acted within the provisions of Article 310 of the Code of Criminal Procedure, which states that “The prosecutor or the civil plaintiff, if applicable, may request, once the requirements set forth in Article 303, that the Judge issue a restraining order to dispose of or record the assets of the accused or the civil third party, which shall be recorded in the Public Records”.
This generic precautionary measure prevents the encumbrance or alienation of registrable assets of the accused or the civil third party. In the specific case of the Odebrecht company, it will not be able to dispose of its registrable assets such as its shares and/or properties. The purpose of any precautionary measure is to prevent certain harmful or prejudicial actions by the accused or the civil third party from affecting the effectiveness of the judgment in relation to the economic legal consequences of the crime or the effectiveness of the process itself”.
Thus, in relation to Legislative Decree No. 1068 and Legislative Decree No. 958 (NCPP), the order is grounded. However, the questioning arises because the measure would suspend the applicability of Emergency Decree No. 003-2017 “Emergency Decree that ensures the continuity of Investment Projects for the Provision of Public Services and Guaranty of payment of civil reparations in favor of the State in cases of corruption”, given that the restraining order would prohibit the company Odebrecht from transferring its shares held in the concessionaires Trasvase Olmos S.A. and H2Olmos S.A.
This measure is contrary to the Emergency Decree, which aims to avoid the paralyzation of the execution of public works or public-private partnerships and the rupture of the chain of payments that put the economic performance of the country at serious risk, as a consequence of acts of corruption carried out by or through the concessionaire companies or contractors.
The truth is that due to what has been propagated in the media, everything suggests that the Attorney General’s Office was unaware of any specific sale of assets brought to the attention of the Ministry of Justice pursuant to Art. 4° of the Decree or in any case there is a divorce between the Head of the Ministry of Justice and the Attorney General’s Office regarding the momentum of the present case and the applicability of Emergency Decree No. 003-2017.
In any case, the measure is already disposed of by the Judiciary and it only remains to wait for this Order of Inhibition to be lifted through two alternatives. The first one is that the Prosecutor’s Office requests that this measure be lifted given that the civil reparation for the crime is dispositive in nature; this means that it can be conciliated, negotiated and even condoned if necessary. Secondly, the injured parties may oppose and, if they consider it pertinent, file an appeal in accordance with Article 315 of the NCPP.
1] NEYRA FLORES, José Antonio (2010) Manual del nuevo proceso penal y litigación oral. Lima, Editorial Idemsa, pp. 487-488, and 491.