Exp. No. 01479-2018-PA/TC, Constitutional Tribunal, Peru, 2019

The appellant brought a constitutional grievance appeal against the resolution issued by the Second Civil Chamber of the Superior Court of Justice of Lima regarding the prosecutorial decisions made in her underlying rape case. The Constitutional Tribunal (the “Tribunal”) concluded that the internal-control offices’ dispositions did not sufficiently explain why an investigation against the local prosecutor was not pursued. The appellant had filed a complaint with the local prosecutor from the Twenty-Second Provincial Criminal Prosecutor’s Office of Lima, alleging that she had been raped while unconscious or in a condition in which she was unable to resist. In her initial complaint, she proposed various measures that the prosecutor could take during the preliminary investigation, including a toxicology exam. She offered the clothes she had been wearing when the accused raped her for examination. Notwithstanding, the provincial prosecutor only considered two declarations, a medical-legal certificate, and security footage, and declared there was no basis for formalizing a criminal action. The appellant then filed a complaint regarding the provincial prosecutor’s determination, claiming that the prosecutor was guilty of failing to exercise his duties and abusing his authority, among other offenses. The Decentralized Office of Internal Control of Lima and the Supreme Prosecutor’s Office of Internal Control of Lima affirmed the prosecutor’s decision. The First Specialized Constitutional Court of the Superior Court of Justice of Lima rejected the appellant’s complaint as an attempt to reopen the preliminary investigation. The Second Civil Chamber of the Superior Court of Justice of Lima found that the prosecutorial decisions were coherent and the appellant’s fundamental rights had not been violated. The Constitutional Tribunal nullified the resolutions issued by the Decentralized Office of Internal Control of Lima and the Supreme Prosecutor’s Office of Internal Control of Lima. The Constitutional Tribunal also ordered the Decentralized Office of Internal Control of Lima to draft a new decision that implements the fundamental principles outlined in the opinion, such as the obligation to expressly and sufficiently justify prosecutorial decisions. The Constitutional Tribunal also ordered the Twenty-Second Provincial Criminal Prosecutor’s Office of Lima to reconsider the viability of opening a preliminary investigation or formal proceeding in the underlying case; the Tribunal also nullified the resolutions declaring that there was no basis for formalizing a complaint against the accused. Additionally, the Tribunal ordered that the appellant’s costs be paid. In making its determinations, the Tribunal emphasized the importance of giving effect to Peru’s public policy of equality between the sexes, a prosecutor’s duty to perform constitutionally and objectively, and elaborated on potential disciplinary actions against the provincial prosecutor. One judge concurred separately and discussed issues of gender discrimination and violence against women in Peru. Two judges wrote separately to state they disagreed with the order to have the provincial prosecutor reconsider whether an investigation was necessary because that order went beyond the appellant’s request for relief and violated the Office of the Prosecutor General’s autonomy.

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